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Political Theory40(6) 688 713
2012 SAGE PublicationsReprints and permission:
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DOI: 10.1177/0090591712460651http://ptx.sagepub.com
460651 PTX40610.1177/0090591712460651Political TheoryBenhabib
2012 SAGE Publications
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1Yale University, New Haven, CT, USA
Corresponding Author:Seyla Benhabib, Department of Political
Science, Yale University, 115 Prospect St., Rosenkranz Hall, Room
225, New Haven, CT 06520-8 Email: [email protected]
Carl Schmitts Critique of Kant: Sovereignty and International
Law
Seyla Benhabib1
AbstractCarl Schmitts critique of liberalism has gained
increasing influence in the last few decades. This article focuses
on Schmitts analysis of international law in The Nomos of the
Earth, in order to uncover the reasons for his appeal as a critic
not only of liberalism but of American hegemonic aspirations as
well. Schmitt saw the international legal order that developed
after World War I, and particularly the criminalization of
aggressive war, as a smokescreen to hide U.S. aspirations to world
dominance. By focusing on Schmitts critique of Kants concept of the
unjust enemy, the article shows the limits of Schmitts views and
concludes that Schmitt, as well as left critics of U.S. hegemony,
misconstrue the relation between international law and democratic
sover-eignty as a model of topdown domination. As conflictual as
the relationship between international norms and democratic
sovereignty can be at times, this needs to be interpreted as one of
mediation and not domination.
Keywordsinternational law, non-discriminating concept of war,
the unjust enemy, cosmopolitanism, sovereigntism, Immanuel Kant,
Carl Schmitt
Articles
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I. The Winds of WarFor Whom Do They Blow?
In 1922, Carl Schmitt published Political Theology: Four
Chapters on the Concept of Sovereignty.1 Reissued in 1934 with a
new Preface by Schmitt, this text, along with The Concept of the
Political (1932) and The Crisis of Parliamentary Democracy (1923),2
established Schmitt as one of the most trenchant critics of the
liberal democratic project. Schmitt documented not only the
sociological transformation of liberal parliamentarianism into the
rule of special interest groups and committees that eventually
undermined parliaments from functioning as deliberative bodies. He
also drove home the rationalistic fallacies of liberalism until its
limit conceptsdie Grenzbegriffewere uncovered. These limit
concepts, in Schmitts view, constituted the secret and unthought
foundations on which the structure of the modern state rested.
Sovereignty is one such limit concept; government by discussion,
and the assumption that all opinions will eventually converge
through deliberation upon a rational outcome, are among the other
unques-tioned presuppositions of liberalism.
Schmitts sociological and philosophical critiques have proven
formidable and have inspired thinkers on the right as well as the
left. From Otto Kirchheimer and Walter Benjamin to Hans Morgenthau
and Leo Strauss, to Chantal Mouffe and Ernesto Laclau3, as well as
many others in our times, Schmitt is the minence grise to whom one
turns when the liberaldemocratic project is in deep crisis. There
is no need here to document the extensive Schmitt renaissance that
has flourished in Europe as well as the United States in the past
decades. Instead, I would like to briefly recall some theses of
Schmitts Political Theology in order to demarcate the continuities
as well as discontinuities between contemporary concerns that may
be gathered under political theology and Schmitts own
preoccupations.
There are at least three interrelated and not always clearly
distinguished theses in Schmitts Political Theology. First is a
thesis in the history of ideas, sometimes referred to by Schmitt as
the sociology of concepts as well (PT, 45), and best expressed
through the following claim: All significant con-cepts of the
modern theory of the state are secularized theological concepts not
only because of their historical developmentin which they were
trans-ferred from theology to the theory of the state, whereby, for
example, the omnipotent God became the omnipotent lawgiver (PT,
36). In the second place, Schmitt explores legal hermeneutics, that
is, the dialectic of the gen-eral rule and the particular case, the
law and the instances to which it applies. In the third place,
Schmitt develops a thesis about the construction and pre-rogatives
of sovereignty as the seat of legitimacy in the modern state.
What
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690 Political Theory 40(6)
resonates most in contemporary debates about political theology
are neither the first nor the second of Schmitts theses, but rather
the third, that is, his theory of sovereignty as the exception. It
is as if the political Zeitgeist of our times has given new life to
the famous opening lines of Schmitts Political Theology, Sovereign
is he who decides on the exception (PT, 5).
The concept of sovereignty has an internal as well as an
external dimen-sion: considered as a norm in domestic law, it
refers to the highest source of authority in a legal regime, and
significant aspects of Schmitts work are dedicated to analyzing the
constitutional dilemmas of legality and legitimacy that surround
sovereignty.4
Sovereignty also has an international dimension: after the
Treaty of Westphalia (1648) that concluded Europes wars of
religion, it means that a unitary political entity, whether a
monarchy or a democracy, is recognized by other political units as
an equal and interacts with them on the basis of certain norms,
laws and treaties. In the postSeptember 11th, 2001 world, many
scholars have turned to this dimension of Schmitts writings on
external sov-ereignty and international law.5 While some see in
this new twenty-first cen-tury the spread and emergence of
cosmopolitan norms, others argue that it is the bid for power of
the American imperium or of the sole rogue superpower that drives
the international conflicts of our age.
Thus, in an article entitled A Just War? Or Just a War?:
Schmitt, Habermas and the Cosmopolitan Orthodoxy, William Rasch
concluded with these astonishing claims:
Call it dialectic of enlightenment, if you like, or just
perverse irony, but the resurrected spirit of that old Catholic,
Carl Schmitt, is certainly one of the Heines [meaning Heinrich
HeineSB] of the present who fight the completion of our
contemporary Geistes Bastille, the mono-lithic cosmopolitan law
envisaged by Habermas. . . . On one hand, in the name of perpetual
peace, Habermas advocated the perpetual war of gentle compulsion
and continuous police actions; on the other hand, in the name of
belligerent, homogenous [sic SB] particularity, Schmitt urges on us
the universal value and possibility of politics as both
affir-mation and opposition. Thus, Schmitt, the nationalist, might
also be Schmitt, the international multiculturalist, who offers
those who obstinately wish to resist the West a theoretical
foothold.6 (first emphasis in original; second emphasis added)
Published in 2000, Raschs article preceded the attacks on the
World Trade Center and the Pentagon of September 11th; the Afghan
War; the war on Iraq;
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Abu Ghraib, Guantanamo and much else. While Raschs judgment that
Schmitt could be named one of the Heines of the moment, is
certainly an instance of perverse irony (Rasch, 1683),
nevertheless, he was correct in sniffing the odor of the times,
which would come to identify cosmopolitanism with global
imperialism and, in particular, with the project of U.S. world
hegemony. Carl Schmitt has since then, and even earlier, become the
indispensable refer-ence point for all those who want to unveil the
hypocrisies, inadequacies, and maybe even bankruptcy, of liberal
democratic politics, at home and abroad.7
My goal in this article is to go to the root of Carl Schmitts
critique of liberal international law as being a ruse to hide
hegemonic aspirations by considering his neglected discussion of
Kants concept of just war in The Nomos of the Earth in the
International Law of Jus Publicum Europaeum.8 Contrary to what
Rasch asserts, we will see that Schmitt is no innocent defender of
multiculturalism resisting the Western hegemon. He is an
author-itarian state theorist who wishes war to remain the sole
prerogative of sover-eign nation-states and who fights against
international law restrictions on aggressive war by denouncing the
League of Nations, the KelloggBriand pact and Woodrow Wilson for
criminalizing war.
After examining the multiple layers at which Schmitts argument
in his Nomos of the Earth proceeds (II and III), I focus on a close
reading of his critique of Kants concept of the unjust enemy
(hostis injustus) in the Metaphysical Elements of Justice (1799).
Schmitt is not wrong in claiming that Kants discussion presents a
profound moral argument to limit the jus in bello (right in war)
but that it also contains certain slippages and ambiguities that
may justify humanitarian interventions such as to enable the
building of a liberal international order (IV). My approach is both
criticalinterpretive and reconstructive, in that I wish to engage
Schmitts reading of Kant to draw out broader issues pertaining to
international law and sovereignty.
In conclusion (V), I turn to contemporary discussions of these
issues, also raging in the U.S. Supreme Court, and argue that
Schmitt, as well as left critics of U.S. hegemony, misconstrue the
relation between interna-tional law and democratic sovereignty as
if this were a model of topdown domination. As conflictual as the
relationship between international norms and democratic sovereignty
can be, it needs to be interpreted as one of mediations and not one
of domination.
II. Schmitts Nomos of the EarthThe Nomos of the Earth is a late
work of Schmitts, first published in 1950, although some of the
articles concerning these themes had appeared
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692 Political Theory 40(6)
throughout the 1940s.9 It is a magisterial work that establishes
Schmitts significance as an expert of international law. The text
moves at three levels at once, which we may characterize as the
ontological, the real-political, and the personal. At the
ontological level, Schmitt is establishing a link between Ordnung
and Ortung (order and orientation), between the law as nomos and
the earth. Nomos is broader in meaning than just law and is usually
rendered as the commonality of the polis, the content of the
con-stitution, laws and customs.10 In terms that cannot fail to
remind one of Heidegger, Schmitt writes of die elementaren
Ordnungen ihres terres-trischen Daseins (the elementary orders of
mans terrestrial being), and he adds, We seek to understand the
normative order of the earth (Nomos, 6; 39). The German, however,
speaks of a Sinnreich der Erde, possibly bet-ter translated as the
domain of meaning of the earth.
These ontological theses about law as nomos, the earth and its
meaning, order and orientation have their sources in an old and
ongoing debate that Schmitt was involved in with neo-Kantians such
as Hans Kelsen.11 As Raphael Gross explains in an illuminating
article, Schmitt adopted the concept of nomos, inherited from the
political theology of German Protestantism, such as advocated by
Wilhelm Stapel, who in turn had developed this concept as part of
his theological confrontation with Judaism.12 What is the source of
the authority of law: human will or reason? Or some more
fundamental order that precedes human acts of law-giving? Does the
law express principles of human justice, or is the law grounded in
some other order that precedes but neverthe-less constrains human
justice? Schmitt is not a natural-rights theorist, and he cannot
respond to Kelsenian positivism by invoking natural law; rather, he
appeals to an order of the earth, and of place (Raum), as opposed
to posi-tivist understandings of law that see law as covering both
earth and sea and as emerging whenever the will of one must be
brought under a law of freedom to coexist with the will of the
other, to use a Kantian locution. Instead, for him the German
concept of law, Gesetz, is deeply implicated in the theologi-cal
opposition of Jewish law and Christian grace. (Nomos, 39;
70).13
At the level of Realpolitik, the second half of Schmitts work
engages in a ruthless, but not always unjustified, polemic against
Anglo-Saxon and par-ticularly American attempts to develop a new
law of nations. The modern state formation in the West begins with
the territorialization of space. The enclosure of a particular
portion of the earth and its demarcation from others through the
creation of protected boundariesand the presumption that all that
lies within these boundaries, whether animate or inanimate, belongs
under the dominion of the sovereignis central to the territorially
bounded system of states in Western modernity. In this Westphalian
model, territorial
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integrity and a unified jurisdictional authority are two sides
of the same coin; protecting territorial integrity is the obverse
side of the power of the state to assert its jurisdictional
authority.
The modern absolutist states of western Europe were governed by
the Jus Publicum Europaeum as their international law. However,
this model was unstable from its inception, or in Stephen Krasners
famous phrase, sover-eignty is hypocrisy.14 The discovery of the
Americas in the fifteenth century, the imperialist ventures into
India and China, the struggle for domination over the Indian Ocean
and the nineteenth-century colonization of Africa destroyed this
form of state sovereignty and international law by chipping away at
its peripheries.15 Not only the Wests confrontation with other
conti-nents, but the question whether the non-Christian Ottoman
Empire belonged to the Jus Publicum Europaeum, showed the
limitations of this order. Though Schmitt himself is not far from
idealizing this Westphalian moment in the evolution of the law of
the earth, his own account documents its inherent limits and
eventual dissolution. The deterritorialization of modern states
goes hand in hand with their transformation from early bourgeois
republics into European empires, be they those of England, France,
Spain, Portugal, Belgium, the Netherlands, or Italy.16
Accompanying these developments have been attempts to formulate
a new law of nations to succeed the Jus Publicum Europaeum.
Foremost among these were the failed League of Nations efforts to
devise a new legal spatial order between 1919 and 1939 (Nomos, 225;
25758). For Schmitt, the deci-sive problem in this periodeven more
than that of the coloniesis the rela-tionship of the United States
to the League. As he puts it quite bitingly,
Once the priority of the Monroe doctrinethe traditional
principle of Western Hemisphere isolation, with its wide-ranging
interpretationswas asserted in Geneva, the League abandoned any
serious attempt to solve the most important problem, namely the
relation between Europe and the Western Hemisphere. Of course, the
practical interpretation of the ambiguous Monroe Doctrineits
application in concrete cases, its deter-mination of war and peace,
its consequences for the question of inter-allied debts and problem
of reparationswas left solely to the United States. . . . Whereas
the Monroe doctrine forbade any League influence in American
affairs, the Leagues role in European affairs . . . was
codeter-mined by these American member states. (Nomos, 224;
25455)
In a turn of phrase that could have flown from Jacques Derridas
pen, Schmitt concludes: The United States was, thus, formally and
decisively not
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present in Geneva. But they were, as in all other matters, and
hardly ineffec-tively and very intensely present as well. There
thus resulted an odd combina-tion of official absence and effective
presence, which defined the relationship of America to the Geneva
Convention and to Europe (Nomos, 22425, my emphasis; I used my own
translation here since the English version has been somewhat
abbreviated).
Schmitts diagnosis of American exceptionalismits absent
presencewith respect to the League of Nations, and to international
organizations and international law in general, is quite accurate,
and in the period between the Gulf War of 1993 and the Iraq War of
2003 has found fresh and recep-tive audiences. It is this
ambivalent relationship of American understand-ings of sovereignty
to a new law of nations that is at the source of the contemporary
concerns of Supreme Court Justices, vis--vis international law.17
Indeed, the United States remains an absent presence, even today,
from the International Criminal Court.
While I find Schmitts commentary on the historical,
geo-political, and legal gyrations and inconsistencies of the
United States as a world power unobjectionable, we must also be
clear that Schmitt critiques American behavior not to offer a new
law of nations but rather to undermine it alto-gether by showing it
to be based on hypocrisies. American hegemony may be economically
and militarily irresistible but it is by no means juridically
justi-fied in his eyes.
Schmitts personal interest in this matterand this is the third
level men-tioned aboveis to destroy the legitimacy of the emergent
world order between 1919 and 1939, and in particular the
criminalization of war through the doctrine that wars of aggression
are legal crimes. With this argument, Schmitt is not only trying to
save the honor of Kaiser Wilhelm II who was rendered a war criminal
by the Allies as a result of the Versailles Treaty of 1919, but he
is also trying to save his own honor, since he would refuse to
cooperate with the investigation of the Denazification Commission
and would have his own right to teach (venia legendi) revoked by
the Allies after World War II.18 If the legal order that emerged in
this period under the influence of the League of Nations and the
criminalization of aggressive war was based upon juridical, moral,
and geo-political hypocrisies and contradictions, then how could
the Nremberg legal order that resulted from the Third Reichs defeat
be anything but a continuation of this bankrupt order? It is in
this con-text that Schmitts attacks against the discriminating
concept of war, and his plea to restore the non-discriminating
concept of war need to be evaluated, although the preoccupation
with these themes derive from his deeply seated theoretical
concerns and do not reflect motives of self-justification
alone.
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III. The End of the Pre-Modern Doctrine of Just War
Schmitts eulogy to the Jus Publicum Europaeum in the first part
of Nomos emphasizes that this system neutralizes war by moving away
from the medi-eval notion of just war. In this transformation the
enemy is no longer viewed as inimicus but as justi hostes
(categories which also return in Schmitts concept of the
political).19 The enemy is not one with whom one has religious,
moral or existential conflictsan inimicusbut one with whom it is
possible to have potential or actual conflicts of interests.
Schmitt, however, is never consistent in his attempts to
distinguish hostis from inimicus, the public from the private
enemy, because of his contention that the enemy is the one with
whom one has the most intense kind of con-flict. In the final
analysis, this distinction leads back to his racially grounded
theory of the people as a Volksgemeinschaft. As Karl Lwith, one of
the earli-est and most penetrating observers of Carl Schmitt,
notes:
On the one hand he must seize upon a substantiality which no
longer befits his own historical situation and from which enmity
derives sub-stantive content; on the other hand, as a modern,
postromantic human who thinks far too occasionally to be able to
believe in divinely willed and naturally given distinctions, he
must again relativize the substan-tial presuppositions and shift
his whole fundamental distinction into a formal existentiality. As
a consequence, his decisive formulations of the friend-enemy
distinction shift indecisively back and forth between a substantial
and an occasional understanding of enmity and friend-ship, so that
we do not know whether what is at stake here is those of like kind
and those of different kind, or whether instead what is at stake is
simply those whoeither with one or against oneare occasionally
allied. Upon the shifting ground of this ambiguity Schmitt builds
up his concept of the political, whose essential feature is no
longer life in the polis but instead is simply the jus belli.20
On a more positive level, Schmitts reconstruction of the
eventual decline of just war, used by Christian theologians in
their encounter with the New World, is prescient (Nomos, 69ff.;
102ff.), and anticipates some of the best work done by contemporary
scholars of post-colonial theory.21 But matters are never simple
with Schmitt, since he not only intends to criticize the medi-eval
doctrine of just war but to denounce altogether the discriminating
con-cept of war that would outlaw wars of aggression.
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Based on relations between states, writes Schmitt,
post-medieval European international law from the 16th to the
20th century sought to repress the justa causa. The formal
reference point for determining just war no longer was the Churchs
authority in inter-national law, but rather the equal sovereignty
of states. Instead of justa causa, international law among states
was based on justus hostis. Any war between states, between equal
sovereigns, was legitimate. Given this juridical formalization, a
rationalization and humanizationa bracketingof war was achieved for
200 years. (Nomos, 91; 121)
This concept of war is based upon the separation of
moraltheological from juridicalpolitical premises, and the
separation of justa causa, grounded in moral arguments and natural
law, from the typically juridicalformal question of justus hostis,
distinguished from the criminal, i.e. from becoming the object of
punitive action (Nomos, 91; 121, emphasis in origi-nal). Schmitt
also names this the neutralized concept of war: All inter-state
wars upon European soil, which are carried out through the
militarily organized armies of states recognized by European law of
nations (Vlkerrecht), are just in the sense of the European law of
nations of this inter-statal period (Nomos, 115; 143, emphasis in
original).
The international law of 1918 to 1939, by contrast, undermines
these dis-tinctions by outlawing wars of aggression, thereby also
eliminating the dis-tinction between hostis and inimicus, the
public versus the private enemy. Wars opposed to this new legal
order become unjust wars, and the enemy becomes a criminala
criminal against humanity. Kant, the author of Perpetual Peace,
already anticipated something of these developments in his confused
concept of the unjust enemy.
IV. The Critique of KantNo war of independent states against
each other can be a punitive war (bellum punitivum), writes Kant in
his late work The Metaphysical Elements of Justice of 1797.22 In
the state of nature, states possess both a right to go to war as
well as the right to retaliate for offenses committed against them
(Kant, MEJ, 56, 116). In this condition, there is no judge to
arbitrate among states, nor is there a superior in relation to
them,23 and precisely because of this Kant concludes that
nor, again, can any war be either a war of extermination (bellum
inter-necinum) or of subjugation (bellum subjugatorium), which
would be
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Benhabib 697
the moral annihilation of a state. . . . The reason there cannot
be a war of subjugation . . . is rather the idea that the right of
nations involves only the concept of an antagonism in accordance
with principles of outer freedom by which each can preserve what
belongs to it, but not a way of acquiring, by which one states
increase of power could threaten others. (Kant, MEJ, 57, 117)
One can demand supplies and contributions from a defeated enemy,
but one cannot plunder its people, nor subjugate them, nor rob them
of their civil freedom (MEJ, 118). So great is Kants attempt to
circumscribe war in accordance with moral precepts respecting the
dignity of the person and the moral status of peoples, that he even
prohibits states from using their subjects in such a manner as
would make them unfit to be citizens once hostilities are concluded
(MEJ, 117). This includes using people as spies, assassins,
poisoners, snipers and for spreading false rumors. Wars must be
concluded by treaties and prisoners must be exchanged without
ransom.
It is clear that Kant is at pains to limit both the right to go
to war (jus ad bellum) and the right within war (jus in bello) in
as much as possible to accord with the principle of treating human
beings as ends and never only as means. Schmitt also praises Kants
greatness and humanity (Nomos, 142; 170), but is greatly puzzled by
the turn Kants argument then takes in paragraph 60 of The
Metaphysical Elements of Justice, when Kant introduces the concept
of an unjust enemy [der ungerechte Feind] (MEJ, 60, 118). Whereas
the idea of a non-punitive war among states is, in Schmitts terms,
a non-discriminatory concept of war, with the introduction of the
concept of an unjust enemy, Kants thought threatens to regress back
to viewing war as justa causa and to see the enemy, the hostis, as
a criminal. But who is the unjust enemy, against whom the right of
those who are threatened by him or who feel threat-ened by him have
no limits?24 (MEJ, 60, 118; Nomos, 141; 169).
Kants answer is that this is an enemy whose publicly expressed
will (whether by word or deed) reveals a maxim by which, if it were
made a uni-versal rule, any condition of peace among nations would
be impossible and instead a state of nature would be perpetuated
(MEJ, 60, 119, my empha-sis). As examples of this maxim, Kant only
cites violations of public contracts, but it is clear that he has a
much more expanded notion of what this might involve. And this is
the source of Schmitts anxiety. Schmitt confidently asserts that it
is certainly not the opponent who has broken the rules of war and
has violated the right to war by perpetuating crimes and
atrocities. [I must add that I am not sure about how Schmitt
arrives at this through a reading of Kant but I will not pursue
this point further here.] If freedom is threatened,
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698 Political Theory 40(6)
then by whom, and who will concretely decide? asks Schmitt. All
this remains open. . . . . And sounds like the old doctrine of just
war . . . (Nomos, 141; 169).
As a jurist, Schmitt is right to be concerned with the
distinction between word and deed and to question whether words
alone would suffice to make one an unjust enemy. Is ideological
propaganda by a state that supposedly contradicts the established
international order sufficient to declare it an unjust enemy, for
example? Think here of contemporary Iran. Is not Kants principle
dangerously expansive and vague in that it seems to eliminate
dis-tinctions between wars of words and wars of deeds?
There is a more direct way of introducing some content to Kants
defini-tion and this would involve reading this principle in the
light of Kants earlier work on Perpetual Peace of 1795. An unjust
enemy could be interpreted as one who would reject the three
definitive, as opposed to provisional, princi-ples of Perpetual
Peace. These are: The Civil Constitution of Every State should be
Republican; The Law of Nations shall be founded on a Federation of
Free States; and The Law of World Citizenship Shall be Limited to
Conditions of Universal Hospitality (Kant [1795] 1923, 43446; 1994,
99108).25 Any state that refuses to enter into a lawful condition
with other states, by explicitly refusing to acknowledge these
principles, remains in a state of nature, that is, a state of
hostility. That there is textual evidence for my reading is
provided by two further arguments of Kants.
First, since the freedom of all nations would be threatened by
those who deny these principles, other nations can wage war against
them but cannot make them disappear from the earth since this would
be injustice against its people, which cannot lose its original
right to unite itself into a common-wealth, though it can be made
to adopt a new constitution that by its nature will be unfavorable
to the inclination for war (MEJ, 60, 119). A people can be made to
adopt a new constitution; in other words, regime change to make the
unjust enemy respect the principles of perpetual peace is
permissi-ble. Schmitt is not wrong then in seeing in Kants text the
beginnings of a vision of a liberal world order within which the
range of regimes that would be considered legitimate is narrowed to
those that would respect the laws of nations, defined through the
principles of perpetual peace. But this answer raises further
difficulties: Are only republics to be tolerated in the new world
order then? How about empires such as the Chinese, for which Kant
has some kind words in other texts? Or non-sedentary and nomadic
peoples who may not want to be subjugated by European powers and
whom Kant praises in other writings? How extensive and intensive
are the principles of perpetual peace? Questions remain.26
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Benhabib 699
Second, in the paragraphs following his discussion of the unjust
enemy, Kant returns to his idea of an association of states (ein
Vlkerbund) that would renounce the state of nature prevailing among
states, and thereby also give up the unilateral right to go to war
(MEJ, 61, 119). As is well known, Kant finds it quite difficult to
articulate the exact political form of such an association; he
rejects the idea of a world-state; and wishes to defend the
prin-ciples of a world-republic and ends up with an association of
several states to preserve peace, which can then be called a
permanent congress of states, which each neighboring state is at
liberty to join (ibid., my emphasis). May be then the unjust enemy
is the one who refuses to join such an association altogether; or
who wishes to exit once having joined, or may be even a group of
states who form a competing association based on different
principles, thus hindering the development of world-society towards
a condition of law.
I think that at least two readings of Kant are possible on these
issues: on one reading, the unjust enemy would be the one who would
reject all three definitive articles of perpetual peace as a
package; on a second reading, some states may reject some versions
of Articles 1, 2, and 3 but may accept some form of the law of
nations and a peaceful federation.27 In particular, not all nations
may be willing or able to adopt a republican constitution. Should
they also to be considered unjust enemies?
It is hard to deny that in the obscurity of these passages we
encounter some of the paradoxes of a liberal law of nations in the
Kantian sense. First and foremost, nations must of their own accord
wish to enter a pacific federa-tion, that is, at a minimum, they
must establish a condition of lawful coexis-tence with each other
such that conflicts can be adjudicated and the option of war is
severely limitedeven if not wholly eliminated. Schmitt, unlike
Kant, doubts there can ever be such a condition of legality among
nations, based on the authority of a neutral judge. For him, the
political governs human actions all the way down. Thus, rather than
try and eliminate war among nations or subject it to the judgment
of only seemingly neutral instances, Schmitt recom-mends that one
accept the inevitability of war among sovereign states and treat
the enemy not as a criminal but as a worthy opponent. For Schmitt,
interstate wars are more like duels than wars. But Kant is more
radical here: he sees wars not as duels but as inflicting most harm
on ordinary people who, unless they live in a republic, are neither
able to resist serving in the army nor resist losing life and limb
for the glory of sovereigns.
Although much of this may sound arcane to our ears, and many
historical nuances may escape us,28 we should note that Schmitt
does not mince his words and sees Kant as initiating doctrinal
changes that will eventually undermine the non-discriminatory
concept of war. But, just as obviously, it was possible for
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700 Political Theory 40(6)
Kant, he writes, as it was earlier for theologians, to use a
philosophical ethic to deny the concept of a justus hostis, and by
introducing discriminatory war, to destroy the work of jurists of
the jus publicum Europaeum (Nomos, 143; 171). These changes will
lead to the outlawing of wars of aggression through the
KelloggBriand Pact of 1928 and the extension of international law
to include not only the crime of war but also the category of
crimes against humanity. Already in Kants injunctions against using
human beings as spies, snipers and propagandists, some sense of
human dignity that places limits on what can be done with and to
human beings in war is evident.
Although all his criticisms of Kant are consistent with Schmitts
claim that the political is the most intense kind of human
conflict, and that therefore it cannot be made subservient to the
legal, religious, moral or aesthetic domains, there is also a
dimension of personal bitterness that accompanies many of his
assertions. Schmitt sees the Nremberg and Tokyo trials as a form of
Siegerjustiz, victors justice, and illegitimate bootstrappingNullum
cri-men, nulla poena sine lege (No crime, no punishment without the
law) is his judgment. Or, as he puts it more caustically with
regards to the Holocaust: Was it a crime against humanity? Is there
such a thing as a crime against love?29; and further, Genocidethe
murder of peoplesa touching con-cept; I have experienced an example
of it myself: the extermination of the German-Prussian civil
service in 1945. Finally: There are crimes against humanity and
crimes for humanity. Crimes against humanity are committed by the
Germans. Crimes for humanity are perpetrated on the Germans.
Schmitt is not simply the theorist of agonistic and contentious
politics but the theorist of the rights of states to conduct war
for their own preservation and also the theorist who rejects
concepts such as human rights and crimes against humanity as being
moralizing glosses on superpower politics.30
In Kants Idea of Perpetual Peace: At Two Hundred Years
Historical Remove, Jrgen Habermas discusses Schmitts critique of
Kant. The poli-tics of a world organization, writes Habermas, that
takes its inspiration from Kants idea of perpetual peace and is
directed to the creation of a cosmopolitan order, harkens to the
same logic, according to Schmitt: its pan-interventionism would
inevitably lead to pan-criminalization, and hence the perversion of
the goal it is supposed to serve.31 In particular, Habermas
disputes Schmitts claim that the politics of human rights leads to
wars which under the guise of police actions take on a moral
character; and second, that this moralization brands opponents as
enemies, and the resulting criminalization for the first time gives
inhumanity a completely free hand (Habermas, KIPP, 18889).
Undoubtedly, the last two decades since the end of the Cold War
and the fall of the Berlin Wall in 1989 have been some of the most
confusing and
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bewildering in terms of international alliances and world
politics, and strange bedfellows have been created in the process.
We still hear echoes of this Schmittian critique that the first
Gulf War, the NATO intervention in Kosovo, and the Afghanistan and
Iraq Wars conducted by the United States were instances of the
moralization of war, that declared enemies to be crimi-nals.32
Certainly, contemporary Left-Schmittians who see each conflict in
terms of the bid to global empire of a single hegemon have an
easier time than the rest of us as public intellectuals and
citizens, whose moral intuitions and political judgments on these
issues have often been confused and conflic-tual, but not for lack
of clear thinking or information. As Hannah Arendt observed in
quite a different context, it is the mark of ideological thinking
to have a key to unlock every riddle33; in the absence of such a
key, we have to learn the art of making hard distinctions, such as
may be yes to the original U.S. action against the Taliban but no
to the Second Iraq War; may be yes to Kosovo, even in the absence
of a UN Security Council vote; may be no to Libya even with a
Security Council resolution etc. Making such judgments are the
burden of our times.
In conclusion, I wish to explore new ways of thinking about
international law and cosmopolitan human rights norms that give the
lie to the qualms of some on the Left that international law yields
a Geistes Bastillean intel-lectual or spiritual prison. There are
many dimensions to Schmitts discussion of external sovereignty and
international law, but I would like to focus on one alone. Are
human rights treaties that limit sovereignty in the postWorld War
II period moralizing impositions upon the will of democratic
peoples? How can we conceptualize the relationship between
international human rights norms to democratic sovereignty? There
is an important debate among liberal and democratic thinkers on
these issues and Schmitts thought is of little guidance in helping
us think through our contemporary dilemmas.
Varieties of SovereigntismOne of the most important developments
in international law in the postWorld War II period is, in addition
to the criminalization of wars of aggres-sion, the normative
limitations placed on state sovereignty through the spread of human
rights norms. I will refer to the many treaties that have been
concluded since the Universal Declaration of Human Rights of 1948
as cos-mopolitan human rights treaties.34 These treaties confirm
the status of humans as rights-bearing beings not in virtue of
their national citizenship but in virtue of their human
personality, although such rights can be meaning-fully exercised
only in the context of specific polities. It is quite correct
to
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702 Political Theory 40(6)
see in these developments the flourishing of certain normative
principles forcefully articulated by Kant.
Schmitt is just as cynical about limitations placed on internal
sovereignty as he is about limitations imposed on external
sovereignty. By not distin-guishing between human rights norms
limiting internal, domestic sovereignty and norms prohibiting wars
of aggression, limiting external sovereignty, pro-gressive thinkers
who wish to use Schmitts thought to critique the hypocri-sies of
the current international order are risking throwing the baby out
with the bathwater. In conclusion, I want to briefly argue that the
model of a hege-monic imposition of cosmopolitan norms on
self-determining polities misun-derstands the contemporary world of
treaties and states institutionally as well as normatively.
The normative objections raised by sovereigntists against recent
legal developments can be separated into the nationalist and
democratic variants. The nationalist variant traces the laws
legitimacy to the self-determination of a discrete, clearly bounded
nation whose law expresses and binds its col-lective will alone.35
The democratic variant says that laws cannot be consid-ered
legitimate unless a self-determining people can see itself both as
the author and the subject of its laws. For the democratic
sovereigntist it is not paramount that the law express the will of
a nation, of an ethnos, but that there be clear and recognized
public procedures for how laws are formulated and in whose name
they are enacted and how far their jurisdiction extends in the name
of a demos.
The democratic sovereigntist argument has many adherents, among
them Thomas Nagel, Quentin Skinner, Michael Walzer and Michael
Sandel.36 One way to introduce some clarity into the debate between
cosmopolitans and sov-ereigntists is to focus on a family of global
norms which enjoys widespread support. These are international
human rights norms, originating with the Universal Declaration of
Human Rights of 1948. A democratic sovereigntist such as Thomas
Nagel and a cosmopolitan such as Habermas both agree thatpace
Schmittin addition to international law concerning the prohibi-tion
and conduct of war among states, human rights constitute the
foundations of the postWorld War II international system.37 The
spread of international law need not take the form of a social
contract for the formation of a world-state that would transcend
the political autonomy of existing states.38 Instead, as Habermas
argues, Today any conceptualization of a juridification of world
politics must take as its starting point individuals and states as
the two catego-ries of founding subjects of a world constitution
(ibid., 449, emphasis in original). So the question is not whether
one can move to a world without competing states but whether there
are modes of mediating international
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Benhabib 703
norms with nationaldemocratic ones that would not involve
subordinating the national to the supranational and would safeguard
legitimate plurality in the interpretation, adjudication and
application of human rights norms.
I would like to distinguish among three different, but mutually
supporting, models that try to conceptualize this mediatization
between cosmopolitan human rights norms and democratic processes of
will and opinion formation. Such mediatization can take place
through jurisgenerative processes of democratic iterations that
interpret and contextualize the national in the light of the
cosmopolitan, giving both sets of norms new and unexpected
hermeneutic context. A second form of mediatization involves the
institu-tional impact of international human rights covenants on
states subscribing to them; and a third form pertains to the impact
of such treaties on courts and adjudication. My argument is that
many left critics of cosmopolitanism ignore the actual workings of
the system of international law and view this new legal order as if
it were a smooth command structure, but it is not. The challenge
today is to develop an institutional, normative and conceptual
model for articulating the universe of this new law of
nations.39
Jurisgenerative Mediation of International Norms and Democratic
SovereigntyBy jurisgenerativity, a term originally suggested by
Robert Cover,40 I under-stand the laws capacity to create a
normative universe of meaning that can often escape the provenance
of formal lawmaking.41 Laws acquire mean-ing in that they are
interpreted within the context of significations that they
themselves cannot control. There can be no rules without
interpretation; rules can only be followed insofar as they are
interpreted.42 But there are also no rules that can control the
varieties of interpretation they can be subject to within all
different hermeneutical contexts. Laws normativity does not
con-sist in its grounds of formal validity, that is, its legality
alone, though this is crucial. Law can also structure an
extra-legal normative universe by develop-ing new vocabularies for
public claim-making, by encouraging new forms of subjectivity to
engage with the public sphere and by interjecting existing
relations of power with anticipations of justice to come. Law
anticipates forms of justice in the future to come. Law is not
simply an instrument of domination and a method of coercion; the
force of law (to use a phrase of Jacques Derridas)43 involves
anticipations of justice to come which it can never quite fulfill
but which it always points toward.
Democratic sovereigntists ignore that international human rights
norms can empower citizens in democracies by creating new
vocabularies for claim-making
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704 Political Theory 40(6)
as well as by opening new channels of mobilization for civil
society actors who then become part of transnational networks of
rights activism and hegemonic resistance.44 Human rights norms
require interpretation and vernacularization; they cannot just be
imposed by legal elites and judges upon recalcitrant peoples;
rather, they must become elements in the public culture of
democratic peoples through their own processes of interpretation,
articulation and iteration.
Such contextualization, in addition to being subject to various
legal tradi-tions in different countries, attains democratic
legitimacy insofar as it is car-ried out through the interaction of
legal and political institutions within free public spaces in civil
society. When such rights principles are appropriated by people as
their own, they lose their parochialism as well as the suspicion of
western paternalism often associated with them. I call such
processes of appropriation democratic iterations.45
Institutionalist Mediation of International NormsA more
empirical and institutional approach to analyzing the impact of
human rights norms on signatory states has been provided by Beth
Simmons. In her influential work, Simmons looks at empirical case
studies to analyze the impact of states ratifications of various
human rights treaties on domes-tic adherence to human rights norms.
Simmons observes that the more interesting cases . . . are those in
which governments ratify an international human rights agreement,
yet make no move to implement or comply with it. Why should a
ratified treaty make a difference in such cases?46 One reason may
be that since treaties constitute law in some jurisdictions, they
could strengthen civil rights litigation. Yet it is more
challenging when ratified trea-ties enable citizens mobilization.
Simmons focuses on non-democratic states to argue that ratification
injects a new model of rights into domestic discourse, potentially
altering expectations of domestic groups and encour-aging them to
imagine themselves as entitled to forms of official respect
(Simmons, 445). Simmons presents an analysis of the impact of the
ICCPR on civil liberties and religious freedoms across several
countries. These results suggest, she writes, a modest but
important conclusion: interna-tional treaty commitments quite
likely have made a positive contribution to civil rights practices
in many countries around the world (Simmons, 480).
Adjudicative Models of Mediating International NormsYet a
further approach is developed by Alec Stone Sweets work on the
emergence of a cosmopolitan order through the interplay of
legislation and
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Benhabib 705
adjudication between the European Court of Human Rights, the
European Court of Justice and national courts within the
ever-expanding European legal sphere. Stone Sweet writes:
A cosmopolitan legal order [CLO] is a transnational legal system
in which all public officials bear the obligation to fulfill the
fundamental rights of every person within their jurisdiction,
without respect to nationality or citizenship. In Europe, a CLO has
emerged with the incorporation of the European Convention on Human
Rights [ECHR] into national law. The system is governed by a
decentralized sovereign: a community of courts whose activities are
coordinated through the rulings of the European Court of Human
Rights.47
Human rights norms assume flesh and blood through democratic
itera-tions, as well through institutional incorporation via states
treaty obligations into civil society, and also through the
interplay of adjudication and legisla-tion. The democratic
sovereigntists fears that cosmopolitan human rights norms must
override democratic legislation is unfounded, because the very
interpretation and implementation of human rights norms are
radically dependent upon the democratic will formation of the
demos, which is, of course, not to say that there can be no
conflict either of interpretation or implementation.
ConclusionWe have entered a new stage in the development of
global civil society in which the relationship between state
sovereignty and various human rights regimes generate dangers of
increasing interventionism but also paradoxi-cally create spaces
for cascading forms of democratic iteration across bor-ders. It is
the perplexities of this new legal and political landscape that
send many critics on the left and the right to Carl Schmitts work.
Yet Schmitts work, as historically rich and conceptually
challenging as it may be, is not easily extricated from its
ideological moorings in his own political entangle-ments with the
Nazi regime. Nor was Schmitt wrong to see in Kants doctrine of the
unjust enemy certain ambiguities and obscurities that may lead to a
coercive regime of liberal cosmopolitanism. Yet the evolution of
human rights norms in the postWorld War II period ushers in a new
phase of inter-national law, which cannot be interpreted as a
coercive regime of neo-liberal hegemonic intentions. Critics who do
so fail to understand the structure of mediations between
international law and democratic sovereignty that are
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706 Political Theory 40(6)
created by these developments. In conclusion, I have briefly
suggested three different but complementary approaches to
understanding such mediations. Certainly, superpower hypocrisies in
upholding or violating norms of aggres-sive war cannot be prevented
by a regime of the spread of human rights norms alone, but by
distinguishing between these two aspects of the interna-tional
legal order, citizens become more empowered to criticize their own
governments. Carl Schmitts legacy, in contrast, disempowers
citizens by giving the state the monopoly of interpretation over
its own strategic inter-ests of survival in the multiversum of
states.
AcknowledgmentsI thank William Scheuerman, John McCormick,
Andreas Kalyvas, Thomas McCarthy, Adam Tooze, Stefan Eich and the
reviewers and editors of Political Theory for com-ments on an
earlier draft of this article.
Declaration of Conflicting InterestsThe author declared no
potential conflicts of interest with respect to the research,
authorship, and/or publication of this article.
FundingA Guggenheim Fellowship and a stay at New York University
Law Schools Straus Institute for the Advanced Study of Law and
Justice in spring 2012 made its comple-tion possible.
Notes 1. Carl Schmitt, Political Theology: Four Chapters on the
Concept of Sovereignty,
trans. with an Introduction by George Schwab (Chicago:
University of Chicago Press, 1985), based on the revised edition of
1934 (PT hereafter).
2. Carl Schmitt, The Concept of the Political, trans. and with
an introduction by George Schwab, expanded edition with Leo
Strausss Notes on Schmitts Essay (Chicago: University of Chicago
Press, 1996); hereafter referred to as TCP; Carl Schmitt, Crisis of
Parliamentary Democracy, trans. and with an introduction by Ellen
Kennedy (Cambridge, MA: MIT Press, 1988); referred to as TCPD.
3. Otto Kirchheimer, Remarks on Carl Schmitts Legality and
Legitimacy, in The Rule of Law under Siege: Selected Essays of
Franz L. Neumann and Otto Kirchheimer, ed. William Scheuerman
(Berkeley: University of California Press, 1996), 6498. On the
influence of Carl Schmitt on Walter Benjamin who wanted to dedicate
his doctoral dissertation on German baroque drama to Schmitt, see
Richard Wolin, Between Proust and Zohar: Walter Benjamins Arcades
Project, in The Frankfurt School Revisited and other Essays on
Politics and
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Benhabib 707
Society (London: Routledge, 2006), 2145; on Hans Morgenthau and
Carl Schmitt, see Martti Koskenniemi, The Gentle Civilizer of
Nations: The Rise and Fall of International Law 18701960
(Cambridge, UK: Cambridge University Press, 2002), 41340; William
Scheuerman, Carl Schmitt and Hans Morgen-thau: Realism and Beyond,
in Realism Reconsidered: The Legacy of Hans. J. Morgenthau in
International Relations, ed. Michael C. Williams (Oxford: Oxford
University Press, 2007), 6292; on Leo Strauss and Carl Schmitt, see
Leo Strauss, Notes on Carl Schmitt, The Concept of the Political,
in Schmitt, TCP, 81109, and Heinrich Meier, Carl Schmitt, Leo
Strauss und Der Begriff des Politischen (Stuttgart: J. B. Metzler
Verlag, 1998); Chantal Mouffe, The Challenge of Carl Schmitt
(London: Verso, 1999); Chantal Mouffe and Ernesto Laclau, Hegemony
and Social Strategy: Towards a Radical Democratic Politics (London:
Verso, 1986; 2nd ed., 2001).
4. Carl Schmitts Verfassungslehre (Berlin: Duncker &
Humblot, 1928) in: J. Seitzer, Constitutional Theory (Durham: Duke
University Press, 2008); and special sec-tion Carl Schmitts
Constitutional Theory, Constellations 18, no. 3 (September
2011).
5. Cf. the recent volume, Spatiality, Sovereignty and Carl
Schmitt. Geographies of the Nomos, ed. Stephen Legg (London:
Routledge, 2011).
6. William Rasch, A Just War or Just a War?: Schmitt, Habermas
and the Cosmo-politan Orthodoxy, Cardozo Law Review 21 (19992000):
166584, here, 1683.
7. A Rezeptionsgeschichte of the Schmitt revival on both sides
of the Atlantic would be a book in itself, but it appears to have
started with Italian Leftists in the 1970s who, at the height of
the violence of the Red Brigades, were unsatisfied that there was
no theory of the state and of violence in Marxism. This interest
then jumped over to the United States, and principally to the
journal Telos, which started pub-lishing articles and translations
by Gary Ulmen and Joseph Benderskythe rest, as they say, is
history. See Paul Piccone and Gary Ulmen, Introduction to Carl
Schmitt, Telos 72 (Summer 1987); this was preceded by a
controversial article by Ellen Kennedy, Carl Schmitt and the
Frankfurt School, Telos 71 (Spring 1987): 3766, with responses by
Martin Jay, Alfons Sollner, and Ulrich Preuss. Tracy B. Strong
gives a balanced overview in Foreword: Dimensions of the New Debate
Around Carl Schmitt, in TCP, ixxxix. In the twenty-odd years since
the publication of this material in Telos, the English-language
literature devoted to Schmitt has, in Richard Bernsteins words,
turned into a virtual tsu-nami. Richard J. Bernstein, The Aporias
of Carl Schmitt, Constellations 18, no. 3 (September 2011):
40331.
8. Carl Schmitt, Der Nomos der Erde im Vlkerrecht des Jus
Publicum Europaeum, 4th ed. (Berlin: Duncker & Humblot, 1997),
99; The Nomos of the Earth in the
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708 Political Theory 40(6)
International Law of the Jus Publicum Europaeum, trans. G. L.
Ulmen (New York: Telos, 2003), 12829. All references in the text to
this volume are cited as Nomos, and followed first by page numbers
of the German and then of the English editions. I have consulted
but not always used the English translation.
9. See Carl Schmitt, Vlkerrechtliche Groraumordnung mit
Interventionsverbot fur raumfremde Mchte, translated as The Groraum
Order of International Law with a Ban on Intervention for Spatially
Foreign Powers: A Contribution to the Concept of Reich in
International Law (1939-1941) in Carl Schmitt, Writings on War,
trans. and ed. Timothy Nunan (Cambridge, UK: Polity Press, 2011),
75125. It is impossible to render the German associations of
concepts such as Groraum and raumfremde Mchte accurately in
English. The concept of Raum does not simply mean space for
Schmitt; it is related to Ort (place) and Nomos. See footnotes 12
and 13 below. See also Benno Teschke, Deci-sions and Indecisions:
Political and Intellectual Receptions of Carl Schmitt, New Left
Review 67 (JanuaryFebruary 2011): 6195, on this period in Schmitts
writings, particularly 65ff.
10. Gerhard Nebel, Griechischer Ursprung, vol. I, Platon und die
Polis (Wuppertal: Marees Verlag, 1948), 22 and 39, as cited by G.
L. Ulmen, Translators Intro-duction, in Schmitt, Nomos, 20. The
implications of this concept for Schmitts contrast between Germanic
and Semitic understandings of the law are too exten-sive to be
traced here. The Jews were the people who believed in law without
an orientation or attachment to the land, since they were diasporic
and had no piece of the earth they could call their own. See
Raphael Gross, Carl Schmitt und die Juden (Frankfurt: Suhrkamp,
2000), 60142.
11. See Dan Diner and Michael Stolleis, eds., Hans Kelsen and
Carl Schmitt: A Juxtaposition (Gerlingen: Bleicher, 1999).
12. Raphael Gross, Jewish Law and Christian GraceCarl Schmitts
Critique of Kelsen, in Diner and Stolleis, Hans Kelsen and Carl
Schmitt, 10113, here 106. Cf. Wilhelm Stapel, Sechs Kapitel ber
Christentum und Nationalsozialis-mus (Hamburg: Hanseatische
Verlagsanstalt, 1931), as cited by Gross, 112 fn. 2. Schmitt cites
Stapel approvingly in his attempts to translate nomos as
Lebensge-setz, (the law of life) but notes: It disturbs me that the
word life which has degenerated (entartet) into biologism, as well
as the word law (Gesetz), which under all circumstances needs to be
avoided here, are still preserved in this trans-lation (Nomos, 39;
70). Inexplicably, the English translation makes this passage into
a footnote that is not there in the German version (70 fn. 10).
13. Cf. Schmitt: Nevertheless, unlike the Greek word nomos, the
German word Gesetz is not an Urwort [primeval word]. It is deeply
entangled in the theological distinctions between (Jewish law) and
(Christian) gracethe (Jewish) law and the (Christian) gospel
(Nomos, 39; 70 fn).
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14. Stephen D. Krasner, Sovereignty: Organized Hypocrisy
(Princeton, NJ: Princ-eton University Press, 1999).
15. For a masterful account, which is also a sustained critique
of Schmitt, see Koskenniemi, The Gentle Civilizer of Nations,
98179.
16. For further explorations of this theme, see S. Benhabib,
Twilight of Sovereignty or the Emergence of Cosmopolitan Norms:
Rethinking Citizenship in Volatile Times, Citizenship Studies 11,
no. 1 (February 2007): 1936; now in Seyla Ben-habib, Dignity in
Adversity: Human Rights in Troubled Times (Cambridge, UK: Polity,
2011), 94117.
17. This strange affinity between the theory and practice of
American exceptionalism and Schmitts political thought is well
explored by Paul Kahn in Political Theol-ogy: Four New Chapters on
the Concept of Sovereignty (New York: Columbia University Press,
2011). But Kahns methodology obscures Schmitts politics and takes
the bite out of some of his most outrageous theses. See below,
footnote 30.
18. See W. Scheuerman, Carl Schmitt and the Nazis, German
Politics and Society 23 (summer 1991): 7179; and W. Scheuerman,
Carl Schmitt: The End of Law (Lanham: Rowman & Littlefield,
1999); R. Mehring, Carl Schmitt: Aufstieg und Fall (Munich: C.H.
Beck, 2009).
19. For inconsistencies in Schmitts own usage, see Der Begriff
des Politischen, Text von 1932 mit einem Vorwort und drei
Corollarien, 7th ed. (Berlin: Duncker & Humblot, [1932] 2002);
TCP, 2627; 28; 33; 36.
20. Karl Lwith, The Occasional Decisionism of Carl Schmitt, in
Martin Hei-degger and European Nihilism, ed. Richard Wolin, trans.
Gary Steiner (New York: Columbia University Press, 1995), 151.
21. Cf. Uday Mehta, Liberalism and Empire: A Study in
Nineteenth-Century British Liberal Thought (Chicago: University of
Chicago Press, 1999); Sankhar Muhtu, Enlightenment against Empire
(Princeton: Princeton University Press, 2003); Karuna Mantena,
Alibis of Empire: Henry Maine and the Ends of Liberal Impe-rialism
(Princeton: Princeton University Press, 2010); Bhikhu Parekh,
Rethink-ing Multiculturalism: Cultural Diversity and Political
Theory (Cambridge, MA: Harvard University Press, 2002); Richard
Tuck, The Rights of War and Peace: Political Thought and the
International Order from Grotius to Kant (Oxford: Oxford University
Press, 1999); James Tully, A Discourse on Property: John Locke and
His Adversaries (Cambridge, UK: Cambridge University Press, 1983),
and James Tully, Public Philosophy in a New Key, Vol. 2,
Imperialism and Civic Freedom (Cambridge, UK: Cambridge University
Press, 2008); Anthony Pag-den, ed., The Languages of Political
Theory in Early-Modern Europe: Ideas in Context (Cambridge, UK:
Cambridge University Press, 1987); A. Pagden, Lords of All the
World: Ideologies of Empire in Spain, Britain and France
c.1500c.1800 (New Haven, CT: Yale University Press, 1998).
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710 Political Theory 40(6)
22. Immanuel Kant, Die Metaphysik der Sitten in zwei Teilen, In
Immanuel Kants Werke, ed. A. Buchenau, E. Cassirer, and B.
Kellermann (Berlin: Verlag Bruno Cassirer, [1797] 1922); English
translation, The Metaphysics of Morals, trans. and edit. Mary
Gregor, Cambridge Texts in the History of Political Thought
(Cambridge, UK: Cambridge University Press, 1996). This edition is
referred to in the text as Kant, MEJ, followed by paragraph and
then page number.
23. That Kant is surprisingly close to Hobbes in some of his
formulations regarding the state of nature has been emphasized by
Richard Tuck in The Rights of War and Peace. Political Thought and
the International Order from Grotius to Kant (New York: Oxford
University Press, 2001), 2079.
24. Cf. Hauke Brunkhorsts discussion of Kant and Schmitt, The
Right to War: Hegemonial Geopolitics or Civic Constitutionalism,
Constellations 11, no. 4 (2004): 51225; cf. also Wolfram Malte
Fuss, The Foe: The Radical Evil, Politi-cal Theology in Immanuel
Kant and Carl Schmitt, Philosophical Forum (2010): 181204.
25. I have consulted several English translations of Kants
Perpetual Peace essay, amending the text when necessary. See
Immanuel Kant, Zum Ewigen Frieden. Ein philosophischer Entwurf, in
Immanuel Kants Werke, ed. A. Buchenau, E. Cassirer, and B.
Kellermann (Berlin: Verlag Bruno Cassirer, [1795] 1923); English
translation: H. B. Nisbet, trans., Perpetual Peace: A Philosophical
Sketch, in Kant: Political Writings, ed. Hans Reiss, Cambridge
Texts in the History of Political Thought, 2nd and enlarged ed.
(Cambridge, UK: Cambridge University Press, 1994). The first date
and page number refer to the German text and the second to the
English editions.
26. Here Kants doctrine of relations among states leads to his
theory of cosmopoli-tan right, which Kant made the Third Definitive
Article of Perpetual Peace: Cosmopolitan Right shall be limited to
Conditions of Universal Hospitality (Kant 1795 [1923], 443; 1994,
105). There is considerable debate as to how expansively we should
interpret Kants cosmopolitanism: did Kant expect the whole world
eventually to converge around the principles of a republican
constitution? How was this to be distinguished from a world state
which he sharply criticized as a form of soulless despotism etc.?
Tuck is among those who tend towards e a minimalist understanding
of Kants doctrine of cosmopoli-tan right. Cf. Tuck, The Rights of
War and Peace, 220ff. Cf. S. Benhabib, Intro-duction:
Cosmopolitanism without Illusions, in Dignity in Adversity: Human
Rights in Troubled Times, 120.
27. Cf. the collection, Perpetual Peace: Essays on Kants
Cosmopolitan Ideal, ed. James Bohman and Matthias Lutz-Bachmann
(Cambridge, MA: MIT Press, 1997).
28. For an illuminating and detailed account that also surveys
some of the reasons for the revival of interest in this aspect of
Kants thought, see Martin Frank,
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Kant und der ungerechte Feind, Deutsche Zeitschrift fr
Philosophie 59, no. 2 (2011): 199219.
29. Carl Schmitt, Glossarium: Aufzeichnungen der Jahre 1947-1951
(Berlin: Duncker & Humblot, 1991). The first quote is from 113,
dated March 12, 1948; the second from 265, dated August 21, 1949;
and the last is from 282, dated December 6, 1949.
30. Interpretations of Schmitt have given rise to a battle of
readings in contempo-rary thought. Paul Kahn writes of his
approach: My approach, then, is to engage Schmitts texts in an
effort to uncover the phenomenon of the political. This work is
neither an exegesis of his text, nor an intellectual history. I
assume no famil-iarity with Schmitts text and none with his
historical situation (Kahn, Political Theology, 29). I disagree.
This kind nave reading, without prejudice, can lead to distortions
and does not help us understand Schmitts fighting words and
con-tradicts Schmitts own methodology of concept formation. Schmitt
writes: Words like state, republic, society, class, and also:
sovereignty, constitutional state, abso-lutism, dictatorship,
planning, neutral or total state, etc., are unintelligible if one
does not know who in concreto is supposed to be encountered,
fought, negated, and refuted with such words . . ., TCP, 30ff. Cf.
also Lwith, The Occasional Decisionism of Carl Schmitt, 28081, fn.
76. Chantal Mouffes rather decontex-tualized treatment of Carl
Schmitt has had the purpose of excising some of the most troubling
dimensions of his thought, and presenting him as a theorist of
ago-nistic politics. Cf. Chantal Mouffe, ed., The Challenge of Carl
Schmitt (London: Verso, 1999); C. Mouffe, Carl Schmitt and the
Paradox of Liberal Democracy, Canadian Journal of Law and
Jurisprudence 10, no. 1 (1997): 2133.
31. Jrgen Habermas, Kants Idea of Perpetual Peace: At Two
Hundred Years Historical Remove, in The Inclusion of the Other:
Studies in Political Theory, trans. Ciaran Cronin and Pablo de
Greiff (Cambridge, MA: MIT Press, 2001), 165203; here 188. Referred
to in the text as Habermas, KIPP, followed by page numbers. For a
reading of the HabermasSchmitt connection that reveals some
affinities, see Reinhard Mehring, Der Nomos nach 1945 bei Carl
Schmitt and Jrgen Habermas,
http://www.forhistiur.de/zitat/0603mehring.tm (March 31, 2006).
32. Perry Anderson, Arms and Rights: Rawls, Habermas and Bobbio
in an Age of War, New Left Review 31 (JanuaryFebruary 2005):
540.
33. This is a theme that is prevalent in much of Hannah Arendts
work; cf. The Ori-gins of Totalitarianism (New York: Harcourt,
Brace and Jovanovich, 1979); first published as The Burden of Our
Time (London: Secker & Warburg, 1951). On judgment, propaganda
and understanding, see Understanding and Politics (The Difficulties
of Understanding), in Arendt. Essays in Understanding 1930-1945,
ed. Jerome Kohn (New York: Harcourt, Brace and Co., 1994), 30728,
here 313.
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712 Political Theory 40(6)
34. See Benhabib, Introduction: Cosmopolitanism without
Illusions, in Dignity in Adversity, 120.
35. Cf. the following statement by John Bolton: While the term
sovereignty has acquired many, often inconsistent, definitions,
Americans have historically understood it to mean our collective
right to govern ourselves within our consti-tutional framework. And
Sharing . . . will diminish the sovereign power of the American
people over their government and their own lives, the very purpose
for which the Constitution was written. The Coming War on
Sovereignty, Commentary 127, no. 3 (March 2009),
http://www.commentarymagazine.com/the-coming-war-on-sovereignty
(accessed March 25, 2009). Bolton served briefly and
controversially as the United States Permanent Representative to
the United Nations in 20052006.
36. Thomas Nagel, The Problem of Global Justice, Philosophy and
Public Affairs 33 (2005): 11347; Quentin Skinner, Liberty before
Liberalism (Cambridge, UK: Cambridge University Press, 2008
[1998]); Michael Walzer, Spheres of Justice: A Defense of Pluralism
and Equality (New York: Basic Books, 1983); Michael J. Sandel,
Democracys Discontent: America in Search of a Public Philosophy
(Cambridge, MA: Belknap Press of Harvard University Press,
1996).
37. Nagel, The Problem of Global Justice, 114. See Habermass
comments on Nagels article: The Constitutionalization of
International Law and the Legiti-macy Problems of a Constitution
for a World Society, Constellations 15, no. 4 (December 2008):
44455; on human rights, see 445 and 447. I have dealt with this
issue more extensively in Benhabib, Claiming Rights across Borders:
International Human Rights and Democratic Sovereignty, American
Political Science Review 103, no. 4 (November 2009): 691704.
38. Habermas, The Constitutionalization of International Law,
ibid. 44849.39. See most recently, Jeremy Waldron, Partly Laws
Common to All Mankind:
Foreign Law in American Courts (New Haven, CT: Yale University
Press, 2012).40. See Robert Cover, Foreword: Nomos and Narrative,
The Supreme Court 1982
Term, Harvard Law Review 97, no. 4 (1983/84): 468. Some of this
material is taken from Benhabib, Claiming Rights across
Borders.
41. Cover, Foreword: Nomos and Narrative, 18.42. This, of
course, is the crucial insight of H. L. A. Harts work, cf. The
Concept of
Law, Clarendon Law Series (Oxford: Oxford University Press,
1997), 79100.43. Jacques Derrida, The Force of Law: The Mystical
Foundation of Authority,
Cardozo Law Review 11, no. 919 (19891990): 9201046 (bilingual
text, trans. Mary Quaintance).
44. Margaret E. Kick and Kathryn Sikkink, Activists beyond
Border (Ithaca, NY: Cornell University Press, 1998); Thomas Risse,
Steven Rapp, and Kathryn Sik-kink, The Power of Human Rights:
International Norms and Domestic Change
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Benhabib 713
(Cambridge, UK: Cambridge University Press, 1999); Beth Simmons,
Mobiliz-ing for Human Rights: International Law in Domestic
Politics (Cambridge, UK: Cambridge University Press, 2009).
45. By democratic iterations, I mean complex processes of public
argument, delib-eration and exchange through which universalist
rights claims are contested and contextualized, invoked and
revoked, posited and positioned throughout legal and political
institutions as well as in the associations of civil society. For a
more recent statement which addresses several critical objections,
see Seyla Benhabib, Democratic Exclusions and Democratic
Iterations: Rethinking The Rights of Others, in Dignity in
Adversity, ch. 8, 13866.
46. See Beth Simmons, Civil Rights in International Law:
Compliance with Aspects of the International Bill of Rights,
Indiana Journal of Global Legal Studies 16, no. 2 (Summer 2009):
43781, here 443. Abbreviated in the text as Simmons, followed by
page number.
47. Alec Stone Sweet, A Cosmopolitan Legal Order: Constitutional
Pluralism and Rights Adjudication in Europe, Global
Constitutionalism 1, no. 1 (2012): 5390.
About the AuthorSeyla Benhabib is the Eugene Meyer Professor of
Political Science and Philosophy at Yale University. She has
previously written on critical theory, Jrgen Habermas, feminism,
migration, citizenship and the political philosophy of Hannah
Arendt. Her most recent publication is Dignity in Adversity: Human
Rights in Troubled Times (Polity, 2011). A Guggenheim Fellowship
recipient, she is currently at work on a project on transformations
of sovereignty and international law.
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