Oxford Handbooks Online - Historical Sociology

Carl Schmitt’s Concepts of War

Oxford Handbooks Online

Carl Schmitt’s Concepts of War: A Categorical Failure

Benno Teschke Subject: Political Science, Political Theory, International Relations
DOI: 10.1093/oxfordhb/9780199916931.013.021
Online Publication Date: Apr
2014

Abstract and Keywords

Carl Sc hmitt’s c onc eptual history of war is routinely invoked to c omprehend the c ontemporary mutations in the
c onc ept and prac tic e of war. This literature has passively relied on Sc hmitt’s interpretation of the nomos of the Ius
Publicum Europaeum, whic h trac ed the transition from early modern ‘non-disc riminatory war’ to the US– Americ an
promotion of disc riminatory warfare as a new c ategory in liberal international law . This c hapter provides a c ritic al
rec onstruc tion of Sc hmitt’s antiliberal narrative of war and argues that his polemic al mode of c onc ept formation led
to a defec tive and, ultimately, ideologic al c ounterhistory of absolutist warfare, designed to denigrate liberalism’s
wars as total while remaining silent on Naz i Germany’s de fac to total wars. The historic al c ritique is supplemented
by an interrogation of his theoretic al presuppositions: dec isionism, the c onc ept of the politic al, and c onc rete order
thinking. It shows that Sc hmitt’s history of warfare is not only empiric ally defec tive but also theoretic ally unsec ured
by a suc c ession of arbitrarily deployed and hyperabstrac t theoretic al registers. At the c enter of Sc hmitt’s work
yawns a huge lac una: the absenc e of soc ial relations as a c ategory of analysis.

K ey words: j u s pu bl i cu m eu ropaeu m, n omos, absol u ti st warfare, n on di scri mi n atory war, di scri mi n atory war, total war, deci si on i sm, con cept of th e
pol i ti cal , con crete-order-th i n k i n g

Intro ductio n

The literature on Carl Sc hmitt has not yet generated an in-depth study of his c onc eptual history of war in the
c ontext of his geopolitic s of international law. This is perhaps surprising given that war is, ac c ording to Sc hmitt, the
ultimate expression of the friend–enemy binary and therefore the “leading presupposition” of his notion of the
politic al ([1932] 1996, 34). The elision of this c entral Sc hmittian c ategory in the wider Sc hmitt literature indic ates a
distinc t politic al c hronology in the Sc hmitt rec eption, whic h c leaves into an early phase, whic h revolves largely
around the domestic aspec ts of Sc hmitt’s opus, and a more c ontemporary phase, whic h seeks to rec over his
international thought. While a voluminous and growing first wave of Schmittiana dominates the field, inc luding
studies on his c onc eption of politic al theology (Meier 1998); c onstitutionalism and law (Dyz enhaus 1997, 1998,
2006; Sc heuerman 1999; Koskenniemi 2001; Kennedy 2004); and liberalism, democ rac y, and the state (Holmes
1996; Mc Cormic k 1997; Kalyvas 2008) and extending to his c ollusion with National Soc ialism (Rüthers 1990;
Blasius 2001), antisemitism (Gross 2007), intellec tual rec eption in postwar Germany and Europe (van Laak 2002;
Müller 2003), and possibilities of his Left appropriation (Mouffe 1999, 2005; Balakrishnan 2000; Hardt and Negri
2000; Buc k-Morss 2008), Sc hmitt’s texts on war rec eived in this body of writing very little explic it attention.1

This absenc e of what must c ount as the neuralgic c enter of Sc hmitt’s thought, espec ially in midc areer, has been
partly remedied after the more rec ent public ation of English translations of his key writings on the subjec t, The
Nomos of the Earth in the Jus Publicum europaeum ([1950] 2003) and Theory of the Partisan ([1975] 2007), as
well as some of his lesser known trac ts, The Turn to the Discriminatory Concept of War ([1937] 2011b), The
Groβraum of International Law with a Ban on Intervention for Spatially Foreign Powers ([1939] 2011d), The
International Crime of Aggression and the Principle “Nullum Crimen, Nulla Poena sine Lege” ([1945] 2011e),
Forms of Modern Imperialism in International Law ([1933] 2011a), and Groβraum versus Universalism: The

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Carl Schmitt’s Concepts of War

International Legal Struggle over the Monroe Doctrine ([1939] 2011c ).

These translations, partly prompted by the George W. Bush Doc trine and his War on Terror, have thrown Sc hmitt’s
ac tuality into sharp relief. They oc c asioned a sec ond wave of Schmittiana—c entering either on Sc hmitt’s
influenc e, mediated via Leo Strauss, on neoc onservative ideology (Norton 2005; Drolet 2011); or on Sc hmitt as a
c ritic of liberal imperialism and the US-led perversion of an alleged c lassic al legal c ategory of public war among
sovereign states (Rasc h 2004; Stirk 2005; Sc heuerman 2006; Odysseos and Petito 2007; Hooker 2009; Slomp
2009; Legg 2011; de Benoist 2013). Here, Sc hmitt is validated as the presc ient diagnostic of a trend line that began
with the dissolution of a territorially defined Jus publicum europaeum around the turn of the c entury, the rise of a
legal liberal universalism during the interwar period, and the invention of the disc riminatory c onc ept of war; was
c odified in the Treaty of Versailles and the League of Nations; and ended in the grotesqueries of US-Americ an pan-
interventionism after 9/11. Sc hmitt’s Weimar writings on the turn to disc riminatory warfare have been mobiliz ed to
understand the c onc eptual genealogies of the c ontemporary neologisms of rogues states, liberal interventionism,
irregular warfare, geographies of extralegality, unlawful c ombatants, asymmetric warfare, and the politic al justic e of
the War Crime Tribunals in The Hague and elsewhere. However, the c ontemporary Sc hmitt literature, partic ularly in
the disc ipline of international relations (IR), has rather unc ritic ally ac c epted and passively relied on the historic al
plausibility and c onc eptual c oherenc e of Sc hmitt’s wider historic al narrative. This was best set out in The Nomos of
the Earth, whic h trac ed c hanges in the c ategory of war from the Middle Ages to the Cold War. This history of
international law is often adduc ed to lend historic al depth and intellec tual legitimac y to Sc hmitt’s more c onjunc tural
interventions into interwar international politic s. In fac t, one prominent and disc erning Sc hmitt sc holar, while
qualifying some aspec ts of Sc hmitt’s history, suggests that “what Sc hmitt c laims for this period has been
c orroborated by historians of international relations” (Sc heuerman 2004, 538). Others c laim that “the Nomos is
widely regarded as the masterpiec e of Sc hmitt’s intellec tual produc tion and offers perhaps the most c ompelling
history of the development of international law from the ashes of the Middle Ages to the beginning of the Cold War”
(Odysseos and Petito 2007, 1). And most rec ently, a serious study c onc urs that “the great breadth and erudition of
what is, in a self-evident sense, Sc hmitt’s magnum opus appears destined to guarantee a plac e for Nomos of the
Earth in the c anon of essential IR reading” (Hooker 2009, 3). Muc h of the neo-Sc hmittian revival takes Sc hmitt’s
antiliberal historic al c ounternarrative at fac e value, applying Sc hmittian c ategories of analysis to c ontemporary
affairs without having suffic iently interrogated their intellec tual provenanc es and plausibility. In the proc ess, the
reproduc tion of the tired jargon of the Westphalian state system is performed by the invoc ation and assimilation of
Sc hmitt’s depic tion of the Jus publicum europaeum to IR’s most c herished master c ategory: Westphalia Redivivus.
One myth is c hasing another.

This c hapter, in c ontrast, explores the historic al verac ity of Sc hmitt’s c onc eptual history of the c ategory of war in
the c ontext of the permutations of international public law from the late Middle Ages to the early Cold War. It
examines furthermore whether this history is sec ured by the theoretic al shifts that ac c ompanied his thought on the
subjec t during the Weimar and Naz i periods. For if Sc hmitt’s theoretic ally informed historic al c ounternarrative is to
a large degree flawed, representing more of an ideologic al c onstruc tion than a reliable and verifiable grand
narrative, then muc h of the neo-Sc hmittian literature’s c elebration of Sc hmitt’s prophetic genius ac ross the soc ial
sc ienc es—from the Left to the Right—requires rec onsideration.

Reading Schmitt

Carl Sc hmitt’s thought on war and politic al violenc e developed ac ross three distinc t stages, eac h positioning his
evolving c onc eptions of war in response to c onc rete world-historic al c onjunc tures and eac h grounding these
c onc eptual readjustments and realignments in more fundamental theoretic al shifts. His defense of the c lassic al
legal c onc ept of war in his revisionist interwar writings against the Versailles turn toward a disc riminatory c onc ept
of war, reliant on the retrieval of just war c onsiderations, was tied to his c onc eption of exec utive sovereignty. This
was theoretic ally sec ured by dec isionism and his c onc ept of the politic al. By the mid-30s, this gave way to a fasc ist
c onc ept of territorial Landnahme (land c apture)—brute ac ts of seiz ure and oc c upation that repartition the world—in
whic h war was rec onc eived transhistoric ally as a legality-c onstituting urac t of legitimac y, establishing through a
series of Raumrevolutionen (spatial revolutions) new interstate nomoi. These unities of spac e, law, and politic al
order were forged by wars of c onquest, establishing radic al titles to land. This move was theoretic ally anc hored in
Sc hmitt’s turn away from dec isionism toward c onc rete-order thinking as a new type of juristic thought. In the post-
WWII period, this was to be followed by examinations of the figure of the partisan as the last authentic and

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Carl Schmitt’s Concepts of War

legitimate politic al bearer of physic al violenc e in a largely depolitic iz ed and spac eless world, grounded, if more
c asually, in a return to the c onc ept of the politic al.

Sc hmitt’s writings on war form interventions into and adaptations to spec ific geopolitic al c onstellations but remain
unified in the c ontinuity of a deep underlying leitmotif: the quest for the autonomy of the politic al, whic h informed
his views on the polemic al nature of c onc ept formation.

All politic al c onc epts, images, and terms have a polemic al meaning. They are foc used on a spec ific
c onflic t and are bound to a c onc rete situation; the result (whic h manifests itself in war or revolution) is a
friend– enemy grouping, and they turn into empty and ghostlike abstrac tions when this situation disappears.
Words suc h as state, republic , soc iety, c lass, as well as sovereignty, c onstitutional state, absolutism,
dic tatorship, ec onomic planning, neutral or total state, and so on, are inc omprehensible if one does not
know exac tly who is to be affec ted, c ombated, refuted, or negated by suc h a term ([1932] 1996, 30– 31).

Sc hmitt’s polemic al (i.e., c ombative) approac h to c onc ept formation, most c learly exemplified in his rejec tion of the
self-professed and seemingly value-neutral and depolitic iz ed rendition of the politic al and legal terminology of
Americ an imperialism, is dec isive for understanding his hyperpolitic iz ed mode of knowledge produc tion. It was
c onc eived as an explic it program to forge a c ountervoc abulary and c ounternarrative against the faux semantic
neutraliz ations of liberal universalism. For Sc hmitt, politic al sc ienc e and jurisprudenc e are subjec t to and in the
servic e of his definition of the politic al—the public friend– enemy distinc tion—that demands an existential ac t of
dec ision, politic ally and intellec tually. “It is one of the most important phenomena in the entire legal and intellec tual
life of humanity that whoever has real power is also able to appropriate and determine c onc epts and words. Caesar
dominus est supra grammaticam: the emperor is ruler over grammar as well” ([1933] 2011a, 44). Sc hmitt’s
method of c onc ept-formation is c onsequently not simply devised as an analytic to c apture the history of thought,
but deliberately designed to fabric ate c ounter-c onc epts in the politic al and c onc eptual battles for intellec tual
hegemony (Pankakoski 2010). In this sense, Sc hmitt’s method has to be turned against himself to reveal the
politic al c onstruc tion of an anti-liberal history of the evolution of the c onc ept of war in international law.

Politic al c ombat blends into c onc eptual c ombat. In this sense, partisan intellec tual c ommitment is intrinsic to the
intensific ation of c ollec tive differenc es and identities—the essenc e of the politic al—whose ultimate resolution
esc alates to the level of war and physic al killing. War defines the very possibility of a politic al c ommunity and
c onstitutes the highest expression of the politic al. ([1932] 1996, 32– 35) Tertium non datur! Sc hmitt’s intransigenc e
(Anderson 2005) reflec ts a personal temperamental disposition and a deep existentialist c onc ern for the question
of German independenc e and, after defeat, the figure of the partisan—the vanishing point of the politic al. This
generated Sc hmitt’s ac ute fixation on the defense of the autonomy of the politic al, domestic ally and internationally,
enc apsulated in Germany’s self-determined dec ision and c apac ity to c onduc t war.

This c hapter suggests that the mutations in Sc hmitt’s c onc ept of war c an be produc tively read against the temporal
exigenc ies of this polemic al epistemologic al bac kground. His reflec tions on the subjec t c annot be dissoc iated from
his deeper theoretic al presuppositions and his ideologic ally motivated attempt to retrac e and redefine the evolution
of the c onc ept of war within a revised history of international law and order for spec ific politic al purposes. But here
a spec ific problem arises. Any objec tions to Sc hmitt, whic h are themselves primarily politic ally driven, run the
danger of c onfirming Sc hmitt’s basic insight that no intellec tual agreement c an be reac hed by following the liberal
protoc ols of removing “extraneous” politic al c ommitments from sober “sc ientific ” debate—into the light of the
suasive forc e of the better argument and its suprapolitic al c himera of dispassionate objec tivity and value neutrality.
Max Weber’s irrational demons (i.e., those ultimate value c onvic tions) loom too large. Avoiding this Sc hmittian trap
—reading any c ritique as an a priori validation of his basic epistemologic al presuppositions, or the idea of ultimately
irrec onc ilable intellec tual c ombat grounded in existential differenc es—requires therefore the deployment of the
method of immanent c ritique: (1) assembling and rec onstruc ting Sc hmitt’s premises and c onc epts from within, or
internal ac c ording to their own self-definitions and dec lared purpose; (2) developing and exposing the internal
limits and c ontradic tions of these premises and c onc epts ac c ording to their own logic , forc ing the c onc epts to a
c risis; (3) and interrogating and registering the distanc e between explananda and explanantia (the matc h or
mismatc h between the method of explanation and the objec t of inquiry) until both c apsiz e. This method of
immanent c ritique will be supplemented by an external standard of c ritique (i.e., using the ac c umulated state of
historic al sc holarship), some of whic h is available to Sc hmitt at the time—to asc ertain the plausibility of his
c onc eptual history of war within the framework of his history of international law and order.

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Carl Schmitt’s Concepts of War

The Sc hmittian projec t will therefore be assessed in the light of three questions. First, what is the explanatory power
of his triple c ore theoretic al axiomatic s to c apture the history of sovereignty, war, geopolitic s and international law?
We take these axiomatic s to inc lude dec isionism, the c onc ept of the politic al, and c onc rete-order thinking,
reflec ted in their substantive analogues: sovereignty defined in terms of the dec laration of the state of emergenc y;
the agonal friend– enemy binary; and the notion of the nomos as a unity of law, spac e, and order established by
ac ts of land grabs.— Sec ond, how c redible is his history of international law and order when c hec ked against the
c urrent rec ord of historic al, juridic al, ec onomic , diplomatic , and soc iologic al sc holarship? And third, what are the
c ontextual c onditions that shape Sc hmitt’s ideologic ally superc harged view of c onc ept formation as politic al
c ombat, and what are its intellec tual liabilities?

In answer, I argue that the c onjunc tion of immanent c ritique, external c ritique (i.e., exposure to historic al
c ounterevidenc e), and ideology c ritique reveals that Sc hmitt’s triple axiomatic s are too restric tive to grasp the
phenomena under investigation and too opportunistic ally deployed to provide for c onsistenc y and c oherenc e. This
opens up a gap between explanatory premises and historic al narrative. Sc hmitt’s theoretic al arc hitec ture c annot
sustain the explanatory burden of the task at hand. It therefore leads to a spec ious, selec tive, and defec tive
history of war, geopolitic s and international law. This failure is ultimately grounded in Sc hmitt’s c onsistent
suppression of soc ial relations as a relevant c ategory of analysis, whic h the ultrapolitic ist c ast of his premises
systematic ally elided. This disabled any attempt to relate transformations in modes of warfare, geopolitic s, and law
to transformations and c rises in lived soc ial relations. As a result, the abstrac tion of power from domestic and
international soc ial c ontexts and its elevation to the neuralgic c enter of Sc hmitt’s thought leads ultimately to the
reific ation and fetishiz ation of the politic al and the geopolitic al. More spec ific ally, dec isionism and the definition of
sovereignty in terms of the dec laration of the exc eption exc lude the agenc y of soc ial forc es meant to be exc epted
from the normal rule of law, rendering dec isionism a desoc ializ ed, depolitic iz ed, and one-sided c onc ept outside
any soc iopolitic al c ontext. The notion of the politic al externaliz es any spec ific ation as to what ac tivates the
intensific ation of differenc es to a c ondition of potential killing, rendering the notion formalistic , abstrac t, and empty.
Conc rete-order thinking identifies the c onc rete with the fac tual rather than with the analysis of the c onfluenc e of
multiple determinations, and it removes any explanation of the question of what drives land c aptures (i.e., what
c auses war?) from its explanatory remit. It thereby regressed into a desc riptive affirmation of oc c upation tel quel
as a pristine and metajuridic al ac t of legitimac y.2

The remainder is organiz ed as follows. I start by providing an outline of Sc hmitt’s wider narrative of the history of
war and its relationship to geopolitic s and international law. I then explore and c ritique the theoretic al
presuppositions Sc hmitt put in plac e to sec ure this distorted narrative. The c hapter then delves more deeply into
this problematic narrative by unpac king in detail the flaws in Sc hmitt’s invented history of geopolitic s both
empiric ally and theoretic ally. I c onc lude by identifying the misreadings, c ontradic tions, and omissions in his
theoretic ally informed treatment of war from 1492 to the early Cold War.

Schmitt’s Histo ry o f War

Sc hmitt’s thought on war is embedded in his history of international law and order, revolving around the c entrality
of the jus publicum europaeum—the body of maxims and praxes of early modern international law that prevailed,
roughly, throughout the period from 1492/1648 to World War One—as a func tioning system of legal norms (Sc hmitt
[1950] 2003). Its ac hievement, ac c ording to Sc hmitt, resided in its ability to regulate the exc esses of interstate
anarc hy in a geopolitic al pluriverse without erasing the essenc e of sovereign statehood: the public and sovereign
dec ision to c onduc t war. The jus publicum—a unity of spac e and law termed by Sc hmitt a nomos, in
c ontradistinc tion to the medieval and liberal-c apitalist cosmos—revolved around five c ore c ategories: the state, as
the only legitimate subjec t of war and peac e; sec ulariz ed and absolute state sovereignty; the exec utive, as the
final loc us of reason of state and the arbiter over the state of exc eption; the idea of justus hostis (just enemy), the
just enemy; and the assoc iated c onc ept of nondisc riminatory war.

What distinguished the early modern international legal and politic al order was that the monopoliz ation of warfare
by states—jus belli ac pacis: the rights to war and peac e—removed violent c onflic t from the ideologic al struggles
of c ivil soc iety and rec onc entrated organiz ed violenc e at the level of the state. Absolutism for him referred to a
state strong enough to depolitic iz e and neutraliz e c ivil wars domestic ally. Its historic al ac hievement was to have
c arried through and institutionaliz ed the separation between the private—the world of c lashing ultimate validity

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Carl Schmitt’s Concepts of War

c laims—and the public , the sphere of a morally neutered raison d’état, whose overriding interest resided in the
sec urity of the state itself, c odified in the exc lusive right to make war and peac e. This arrogation of the monopoly
of violenc e by absolutist states formaliz ed therefore a double distinc tion: first, that between public and private,
delegitimiz ing and demilitariz ing private ac tors (lords, c ities, estates, pirates, military orders) while elevating the
public state as the only subjec t of international law and politic s; and sec ond, between inside and outside,
separating a domestic ally neutraliz ed and pac ified c ivil soc iety from an international sphere of interstate rivalries.

This dualism fortified the distinc tion between public international law and private c riminal law. Sinc e the absolutist
state was prerepresentational or preparliamentarian, c onc eiving of itself as legibus solutus, it provided the ideal
type for Sc hmitt’s theory of the modern state, enc apsulated in its dec isionist nature, absolved from law.
Correlatively, as the domestic sphere was rationaliz ed, its international flipside led to the rationaliz ation of interstate
c onflic t by means of a nondisc riminatory c onc ept of war. The rise of the jus publicum was premised on the
c onc rete order of this state-c entric spatio-politic al revolution (Sc hmitt [1950] 2003, 126).

While war remained an indispensable and irreduc ible manifestation of c onc rete politic al c ommunities—indeed, the
essenc e of the politic al—it was the c rowning ac hievement of early modern public law to have c hanneled
generaliz ed c ollec tive violenc e (i.e., an ongoing European c ivil war) into a “war in form” (Sc hmitt [1950] 2003,
141), c onduc ted exc lusively among legally rec ogniz ed states ac c ording to c ertain rules and c onventions. This
move entailed, ac c ording to Sc hmitt, a c lear distinc tion between belligerents and neutrals, c ombatants and
nonc ombatants, states of war and states of peac e. Sc hmitt referred to these ac hievements as the brac keting of
war or a war in form, whic h he lauded as the c iviliz ation, rationaliz ation, and humaniz ation of war. Modern
interstate warfare c ame to be c onduc ted among equals, ac c ording to c ertain intersubjec tively agreed and
c ommonly binding legal c onventions—a c ombination of the right to war (jus ad bellum) and rights in war (jus in
bello)—whic h also implied the positive making of peac e. The jus ad bellum c ame to be divorc ed from just c ause
(justa causa) c onsiderations, whic h were dec lared immaterial for determining the legitimac y of war.

This gave rise to the notion of a nondisc riminatory c onc ept of war (Sc hmitt [1950] 2003, 152), whic h superseded
medieval just war doc trines. Thus, juridic ally externaliz ed, the reasons for war dec laration were plac ed outside any
legal, moral, or politic al judgment, implying the retention of the status of the enemy, even during the fighting, as a
just enemy rather than its demotion as a foe, c riminal, or barbarian. Morality, in that sense, c ame to be divorc ed
from politic s proper. A destruc tive moral universalism, as expressed in the fifteenth- and sixteenth-c entury wars of
religion, was replac ed by a salutary moral relativism in interstate relations. Ac c ordingly, the jus publicum implied a
dec isive rupture with medieval just war theories, grounded in the moral universalism of the res publica christiana.

This new c onc ept of war—at onc e public (i.e., restric ted to interstate war), brac keted (i.e., c irc umsc ribed by
rational rules of c onduc t), and nondisc riminatory (i.e., morally neutral)—c ontrasted sharply with the anterior
medieval prac tic e of violenc e. Within feudal Christian Europe, the arms-bearing status of the nobility and, in
partic ular, the instrument of the feud, rendered all distinc tions futile between the private and the public as well as
between the domestic and the international. A feud was not a war, sinc e it was regarded as an instrument for the
exec ution of justic e. Outside feudal Christian Europe, the enemy was c ategoric ally rendered as a barbarian, whic h
inc luded, by definition, the threat of his annihilation, exemplified in the Crusades. This shift from the medieval jus
gentium (law of the peoples) to the jus inter gentes (law between peoples) established a historic ally
unprec edented and exemplary nomos, c apable of c ombining untrammelled state sovereignty with the anarc hy-
mitigating effec ts of international law.

This line of reasoning was powerfully invoked by Sc hmitt against the post-WWI c riminaliz ation of the German Reic h
as an outlaw nation, whose politic al status as a sovereign state was revoked by the Versailles Diktat ([1940]
1988; [1932] 1996). Sinc e Germany was not admitted to the peac e negotiations and war guilt and war c rime were
not juridic al c onc epts in interstate relations (nullum crimen, nulla poena sine lege), their formulation and intrusion
into international law after 1919 transformed public interstate law into an inc ipient world domestic law, whic h started
to domestic ate, remoraliz e, and juridify the interpolitic al by introduc ing a new disc riminatory c onc ept of war ([1950]
2003, 259– 299; [1937] 2011b). This reinserted just war c onsiderations into the definition of the legality of warfare.
This move, ac c ording to Sc hmitt, c astrated the essenc e of the politic al—the sovereign dec ision to go to war
against an enemy. Versailles thereby abrogated the c ornerstone of the c lassic al jus publicum, undermining war’s
status as the autonomous, purest, and highest form of interstate relations. It transformed war into a polic ing
exerc ise and thus redomestic ated it. Worse, the Wilsonian invoc ation of the c onc ept of humanity rec onnec ted

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Carl Schmitt’s Concepts of War

post-Versailles c onc eptions of international law to medieval just war doc trines, whic h c ontained a tendenc y toward
the total negation of the just enemy and its degradation to an enemy of mankind—a nonhuman ([1932] 1996).
Correlatively, it generated a new and distinc t liberal way of war, more total in its aims than the brac keted and
limited wars of pre-1914 Europe, sinc e it aimed—next to the killing of nonhumans—at the direc t transformation of
politic s, soc iety, and subjec tivities: the making of liberal subjec ts. For Sc hmitt, the Versailles Peac e Treaties
dec lared a status mixtus between war and peac e—a c ontinuation of war by other means.

The development of the disc riminatory c onc ept of war was for Sc hmitt c losely tied to the historic al trajec tory of US
foreign polic y, shaped by the 1823 Monroe Doc trine toward the Western hemisphere, rendering the sovereignty of
Latin Americ an c ountries c onditional on the domestic maintenanc e of private property and free trade; otherwise,
US intervention bec koned. This prec edent was inflated to universal proportions in the League of Nations’
redefinition of the c ategory of war with its morally rec harged disc ourse of law states versus outlaw states, good
versus evil, humanity against terrorists, and the impossibility of neutrality. This was further entrenc hed in liberal
humanitarian law, notably in the 1928 Kellogg-Briand Pac t, whic h sought to outlaw wars of aggression. The
invoc ation of a c ommon humanity leads, paradoxic ally but logic ally, to the depolitic iz ation of former just enemies
(Sc hmitt [1950] 2003, 266), their c riminaliz ation as outlaws, even their dehumaniz ation as foes and to the
radic aliz ation of warfare through its transformation into an annihilatory exerc ise of unqualified killing and the
struc tural impossibility of c onc luding peac e in the absenc e of a legal enemy—a war without end. Wilson’s “war to
end all wars,” lac onic ally derided by Sc hmitt as “the last war of humanity” ([1932] 1996, 70), is paradoxic ally total
in purpose and unending in spac e and time.

Ac c ording to Sc hmitt, the totaliz ing c harac ter of liberal war invariably inc ludes the liberal transformation of targeted
states, soc ieties, and subjec tivities. It is struc turally inc apable of leaving a defeated enemy state and its soc iety
intac t or of readmitting it into the international c ommunity—a historic al prac tic e ideal typic ally exerc ised with post-
Napoleonic Franc e’s readmission into the Conc ert of Europe, agreed at the Vienna Congress—without its
c onstitutional and soc ial alignment with liberal norms. In this perspec tive, liberal war no longer deserves the
appellation war but is repac kaged in pac ifist terminology and transformed into a series of polic ing ac tions,
otherwise known as humanitarian intervention. This opened up the prospec t of the return to the global c ivil wars of
the pre-Westphalian period, even though Americ an world unity had immeasurably expanded the effic ac y of
universal law in a c osmopolitan age, defined as a spac eless universalism driven by the ideology of pan-
interventionism (Sc hmitt [1932] 1996; [1933] 2011a; [1939] 2011c ; [1939] 2011d). These developments are
insc ribed in the long-term logic of the world-historic al departure from Sc hmitt’s golden age of limited interstate wars,
whic h then appears in retrospec t as—and is ac c ordingly elevated to the status of—the highest ac hievement of
European c iviliz ation: the genius of European jurisprudenc e.

Sc hmitt’s c ritique of liberalism’s disc riminatory and total c ategory of war forc ed him to rec onc ile his definition of
c onventional war in the c ontext of the rise of National Soc ialism and his personal c omplic ity with Hitlerism, as he
joined the National Soc ialist German Workers’ Party on May 1, 1933. While his Weimar writings against Versailles
relied on the c lassic al notion, as he saw it, of early modern sovereignty and nondisc riminatory warfare, portraying
Germany as a revisionist and defensive power c onc erned to reestablish the status quo ante, this position bec ame
intellec tually inc reasingly indefensible in the light of Adolf Hitler’s main foreign polic y moves and the final desc ent
into open warfare during the late 1930s. For while Sc hmitt’s early embrac e of Naz ism emphasiz ed its anti-
universalism as a defensive projec t, designed to protec t ethnic differenc es and “German blood” on the c ustomary
grounds of national self-determination ([1934] 2005a, 391–423), he now had to justify and rationaliz e the offensive
wars for German Lebensraum beyond the original geography of ethnic German settlement, whic h broke with all
c onc eptions of just enmity and many c onventions of jus in bello—brute wars of c onquest, murder and plunder.
Sc hmitt c losed this disc repanc y through a double adjustment, invoking the Monroe Doc trine as a model for German
regionalism, artic ulated as a German Großraum—a greater territorial spac e or a pan-region—to argue for a new
planetary pluriverse c omposed of multiple greater regions (1995c ; [1939] 2011c ; [1939] 2011d), and by replac ing
the liberal disc riminatory c onc ept of war with a more primitive and transhistoric iz ed notion of war as land c apture
and effec tive oc c upation, sanc tioned as an original legal order founding ac t of legitimac y, c reating a nomos
([1950] 2003; [1942/1942] 1997). Wars of aggression and wars of c onquest, quite simply, were the historic al norm
—“a c onstitutive proc ess of international law” ([1950] 2003, 80). “World history,” Sc hmitt dec lared in 1942, “is a
history of territorial c onquests” ([1942/1954] 1997, 39). Both c onc eptual mutations realigned Sc hmitt’s legal and
politic al thought with ongoing developments.

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The anti-universalist c ategory of the Großraum c ame to form the fulc rum of the theoretic al struc ture of Naz i
international law, designed to revolutioniz e the international system. Sc hmitt was presc ient enough and faithful to
his own radic al historic ism not to harbor any nostalgic notions of a return to the c lassic al interstate c iviliz ation, as
he saw it. The age of (nation-)states and the post-Versailles Kleinstaaterei (mini-state proliferation) was irretrievably
over. The future, he argued, belonged to a different type of politic al unit, for whic h the Monroe Doc trine provided
the historic al and legal prec edent. Sc hmitt’s normative agenda for a pluriverse of pan-regions was most c learly set
out in his 1939 Order of Greater Spaces in International Law ([1939] 2011d), published before the signing of the
Molotov– Ribbentrop Pac t in August 1939. Sc hmitt lambasted the legal double standards entertained by the United
States at Versailles: simultaneously advoc ating the notions of national self-determination and nonintervention,
c onditional upon the ac c eptanc e of democ rac y and c apitalism, while dec laring the western hemisphere—South
and Central Americ a and the Pac ific —an exc lusive Americ an z one. The western hemisphere was hors de la loi,
that is, outside the league framework and outside any intervention by European powers. Inversely, this Americ an
greater spac e would serve as the foil for Sc hmitt’s notion of a German Großraum—a self-c ontained and autarc hic
German sec urity z one, immune and off-limits to any intervention by raumfremde (alien) powers. For the Monroe
Doc trine not only had prohibited interferenc e by European powers in Americ an affairs but also had artic ulated a
legal c onc ept of Americ an intervention and limited sovereignty for other states within the Western hemisphere.
Against the threat of an Americ an spac eless universalism, Sc hmitt developed during his fasc ist period the notion of
a Großraum as the elementary building bloc k for an antic osmopolitan, anti-universal organiz ation of the
international order based on a plurality of c oexisting Großräume, eac h one under the leadership of one imperial
nation. Pan-regions are meant to provide guarantees against the homogeniz ation of the world into a liberal flatland
—essential for the maintenanc e of differenc e and pluralism, indeed, essential for the very possibility of the politic al,
the friend– enemy distinc tion, enc ased in mutually exc lusive regional bloc s.

Sinc e Germany, in c ontrast to the United States, had first to c arve out its greater spac e, Sc hmitt returned to the
question of how the preliberal European legal order—the jus publicum europaeum—was itself established,
identifying 1492—the disc overy of the New World—as the last great spatial revolution of world-historic al
proportions, premised on a simple but effec tive ac t of seiz ure and oc c upation (Sc hmitt [1950] 2003). Sc hmitt
c onjoined Naz i expansionism with the history of war as a law antec edent ac t of legitimac y, whic h refounds
territorial and legal international orders. Wars of c onquest, wars of aggression, and ac ts of land c apture prec ede
any legal order, forming their material-terrestrial basis and establishing radic al title to land. World history itself
([1942/1954] 1997) is now rec onc eived as a series of wars between land and sea powers, allowing Sc hmitt to
insert the German quest for Lebensraum in a transhistoric al c ontinuum from whic h there is no liberal esc ape. War is
therefore reinstated as a quintessentially politic al and not a juridic al c onc ept. War prec edes law.

Political Decisionism

This ac c ount was theoretic ally framed by Sc hmitt through three distinc t, c hronologic ally suc c essive, but
substantially partly overlapping theoretic al perspec tives: his c onc eption of sovereignty derived from politic al
theology and dec isionism; his c onc ept of the politic al defined as the agonal friend– enemy binary; and his
c onc rete-order thinking, understood as a more soc iologic al perspec tive on the c onstitution of a nomos as a unity
of spac e, power, and law (i.e., an international order). The exposition of these theoretic al perspec tives will be
followed by their immanent c ritique to spec ify their explanatory limits and to asc ertain whether this triple theoretic al
arc hitec ture c an c arry the burden of the narrative above.

In his 1922 Political Theology, whic h rec onc eived the state of law and sovereignty from the angle of the
exc eption, Sc hmitt programmatic ally announc es that “sovereign is he who dec ides on the emergenc y situation”
(1985b, 5). Not Max Weber’s c lassic al definition of sovereignty as the legitimate monopoly over the means of
violenc e but the monopoly of the dec ision moves c enter stage. Sc hmitt develops this key thesis in his attempt to
defend and strengthen Artic le 48 of the Weimar Constitution—exec utive government by emergenc y dec rees—
against legal positivism. This theme c uts ac ross Sc hmitt’s major writings from his Weimar period: Dictatorship
([1921] 2010); The Crisis of Parliamentary Democracy (1923); The Concept of the Political (1927); Constitutional
Law (1928); The Guardian of the Constitution (1931); and Legality and Legitimacy (1932). Sinc e legal norms
c ould func tion only in normal situations, legal positivism was liable to a depersonaliz ed, apolitic al, and ahistoric al
blindness. Sovereignty, ac c ording to Sc hmitt, is not invested in the state as an impersonal and objec tive legal
subjec t, an aggregate of rules and statutes, but intermittently c rystalliz es if and when politic al c rises and soc ial

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disorder—liminal situations—esc ape c onstitutional norms. Suc h c onstitutional c rises require an extralegal and
eminently politic al exec utive dec ision by a single authority for the reassertion of order, grounded in the state’s
inalienable right to self-preservation. Moments of indeterminac y and indec ision in the objec tive legal order require
rapid and firm, disc retionary if not arbitrary, fac t-setting ac ts of subjec tive dec ision: Autoritas, non veritas facit
legem. Dec isionism c aptures the idea that sovereignty resides ultimately in that power that c an dec lare and
enforc e the state of exc eption, suspending the c onstitution in an emergenc y. Its dec laration c annot be derived
from extant legal norms and standard proc edures of dec ision-making. The gap between legal norm and dec ision
inserts an indeterminac y that c an be c losed only by an interpretation of the sovereign. The sovereign dec ision is a
self-referential, self-empowering and unmediated ac t of authority—singular, absolute, and final. Jurisprudentially, it
appears ex nihilo. This disc retionary element of politic al surplus value reestablishes the primac y of politic s over the
rule of law. Legality does not exhaust legitimac y.

Concept of the Political

Dec isionism was c omplemented in 1927 by Sc hmitt’s c onc ept of the politic al ([1932] 1996. It was formally defined
in terms of an intensific ation of latent antagonisms esc alating to the friend– enemy distinc tion, whic h demands at
some unspec ifiable point a politic al dec ision on the identific ation of the internal and external enemy to forge a
dec isive politic al unit and maintain existential c ollec tive autonomy. The dec ision ac tivates the differentiation
between inside and outside and, within the inside, what must be externaliz ed and exc luded. This prec ipitated a
redefinition of the meaning of democ rac y. For Sc hmitt, “democ rac y requires therefore, first homogeneity and
sec ond—if the need arises—elimination or eradic ation of heterogeneity” rather than the “perennial disc ussions” of
parliamentary democ rac y, grounded in liberal pluralism ([1923] 1985b, 9). This instantiated the c onsolidation of an
otherwise intensely fragmented industrial and mass-democ ratic soc iety into a soc ially homogeneous politic al
c ommunity—and, ultimately, an ethnic ally defined (artgerecht) demos—through the joint first princ iples of
autonomous exec utive sovereignty: external war and internal repression.

The politic s of the exc eption transmuted into the politic s of fear as a soc ially integrative devic e. By appealing to the
prima ratio of self-preservation, the overriding threats to sec urity and independenc e demote and flatten all
domestic differenc es and generate the required unity and unanimity. Democ rac y, ac c ording to Sc hmitt, is thus
redefined in identitarian terms as the direc t representation of a unified people (Volk) by the politic al leadership. This
may be mediated by irregular ac ts of spontaneous ac c lamation or plebisc itary elements, intermittently renewing the
bond between leader and led—the national myth of direc t democ rac y. Sc hmitt systematic ally dec onstruc ts the
bourgeois state of law in favor of the total state to resolve the c risis of the Weimar Republic .

Concrete-Order Thinking

After his ousting from power in 1936, Sc hmitt resumed his ac ademic work and produc ed three major texts: The
Order of Greater Spaces in International Law; Land and Sea; and The Nomos of the Earth, written 1943–45 but
published in 1950; as well as the edited 1940 volume, Positions and Concepts, c ollec ting the essays written in his
struggle against Weimar, Geneva, and Versailles. This turn toward international law and international history was
premised on a paradigmatic move away from politic al dec isionism, whic h c ritic iz ed legal normativism from above,
to c onc rete-order thinking, whic h attac ked legal normativism and dec isionism from below. This was first announc ed
in 1934 in a somewhat obsc ure but theoretic ally important book, On the Three Types of Juristic Thought (2004).
Sc hmitt first deployed this new type of juristic thought to replac e the liberal and universalist idea of the rule of law—
and its inc reasingly threatened princ iples of generality and predic tability—by a situation-bound deformaliz ation of
law, upheld and enc ased in different nationally homogeneous legal c ultures. As Sc hmitt’s preoc c upations moved
from c onstitutional to international law during the mid-30s, he realiz ed that politic al dec isionism was insuffic ient to
c apture the politic s and geopolitic s of land appropriations and spatial revolutions, whic h he now privileged as
foundational and c onstitutive ac ts of world ordering to rewrite the history of international law as an antiliberal and
antinormative trac t. This revealed another weakness in normativism, for whic h the original formation of statehood—
indeed, the very presenc e of soc iopolitic al normalc y—appeared as an extralegal and nonjurisprudential problem.
Neither normativism nor dec isionism had an answer to the question: what foundational urac t of legitimac y prec edes
ac ts of legality? What c onstitutes territorial order? Any answer had to revise c onstitutional law in the direc tion of a
soc iologic ally and politic ally expanded notion of jurisprudenc e as a new type of juristic thought, whic h Sc hmitt
referred to as c onc rete-order thinking. Here, the term nomos, in c ontradistinc tion to an undifferentiated universal

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c osmos, was designed to fill this defic ienc y in c onventional jurisprudenc e: “nomos is prec isely the full immediac y
of a legal power not mediated by laws; it is a c onstitutive historic al event—an ac t of legitimac y, whereby the
legality of a mere law is first made meaningful” ([1950] 2003, 73). This c onc eption of a law-antec edent ac t of
legitimac y c ame to inform Sc hmitt’s interpretation of the history of international law—from the Disc overies to the
Großraum—for it put the question of the origins of spatial and legal order as the foc us.

What is c onc rete-order thinking as a soc iologic ally enhanc ed jurisprudenc e in international law? Sc hmitt
exemplified his paradigmatic turn most c learly in The Nomos. It is premised on a single overarc hing thesis, stating
that all legal orders are c onc rete, territorial orders, founded by an original, c onstitutive ac t of land c apture. This
establishes a primary and radic al title to land: a nomos, a unity of spac e, power, and law. Ac ts of land
appropriation and distribution, their partition and c lassific ation, form the material matrix that c onstitutes a nomos.
Sc hmitt derives the term—in c ontradistinc tion to law as statute (Gesetz )—from the Greek verb nemein, meaning the
tripartite ac t of appropriating, dividing, and pasturing. “Nomos is the immediate form in whic h the politic al and
soc ial order of a people bec omes spatially visible—the initial measure and division of pasture-land, i.e. the land
appropriation as well as the c onc rete order c ontained in it and following from it” ([1950] 2003, 70). Nomos
c onnotes the situative unity of a spatial order (Ordnung), and the position or orientation (Ortung) of any c ommunity,
c reating a unity of spac e and law. Against the prevailing aspatial, ahistoric al, and depolitic iz ed legal positivism—
whic h c onc eived of domestic and international law as an abstrac t web of norms, tied together in a seamless
hierarc hy, ultimately derived from the Grundnorm of the c onstitution to whic h even the state is subjec ted. Sc hmitt
explic itly opts for this brute ac t of seiz ure and oc c upation to argue for the metalegal origins of any international
order that grounds its law in a material-terrestrial reality. Legal orders have spatial and martial origins. Might
generates right.

Sc hmitt c onjoined c onc rete-order thinking to his c ritique of the post-Versailles order and the Monroe Doc trine, in
setting out the intellec tual terrain for his geopolitic al vision of a new greater territorial order. This was enc apsulated
in his notion of Großraum, whic h argued for the c oexistenc e of several pan-regions, one of whic h inc luded Central
and Eastern Europe, under Germany’s imperial hegemony. The turn to the c ategory of the nomos had a dual
func tion. First it offered a revisionist history of international law and order, as revolving around a series of land
grabs and spatial revolutions, whic h also served to heap up intellec tual resourc es and arguments to legitimiz e
Hitler’s Raumrevolution and Großraumpolitik. Sec ond, it detonated all the pieties of the League of Nations, as Naz i
German expansion was now insc ribed within the transhistoric al rec urrenc e of primeval nomos-c onstituting ac ts of
c onquest and land appropriations. History is rewritten in the light of Sc hmitt’s (geo-)politic s, and this historic al
revisionism justifies German imperialism.

Schmitt’s Theo retical Presuppo sitio ns: A Critique

To whic h degree c an Sc hmitt’s theoretic al perspec tives (i.e., dec isionism, c onc ept of the politic al, c onc rete-order
thinking) and his key c onc epts (i.e., sovereignty as exc eption, friend– enemy, nomos, and pan-region) func tion as
generic analytic s, able to theoretic ally sec ure the rewriting of the history of statehood, war, and international law?
Clearly, the c entral axis of Sc hmitt’s intellec tual projec t revolves around the insuffic ienc ies of legal positivism in
answering the question of the state and war in historic al perspec tive. He formulated this c ritique, prior to 1934, from
the vantage point of politic al dec isionism and thereafter from the angle of c onc rete-order thinking, as a new type of
juristic thought—the two methods that frame the aforementioned c ategories.

Analytic ally, Sc hmitt’s notion of the extralegal dec ision that instantiates the politic s of the exc eption—while
jurisprudentially an important c orrec tive to the depolitic iz ed world of legal positivism—is little more than a passe-
partout that c an be applied to an indisc riminate range of polities, whic h under duress turn to emergenc y powers.
The applic ation of Sc hmittian c onc epts to the exc eption c an only desc riptively c onfirm, a posteriori, an already
instituted state of affairs as a fait ac c ompli. The explanation of the emergenc y is outside their remit; its c ritique
c annot be formulated from within the Sc hmittian voc abulary. Why is that the c ase? Sinc e Sc hmitt’s method—be it
dec isionism, the friend– enemy distinc tion, or c onc rete-order thinking—is bereft of any soc iology of power,
dec isionism lac ks the analytic s to identify what c onstellation or balanc e of soc iopolitic al forc es c an ac tivate, in
what kind of situation, the politic s of the exc eption and fear. For the dec laration of the state of exc eption is never a
nonrelational c reation ex nihilo—a unique and self-referential event, equivalent to the mirac le in theology. It
remains bound to the soc ial by an indispensable ac t of c alc ulation, prec eding its dec laration, as to its c hanc es of

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implementation and daily public c omplianc e or resistanc e by those upon whom it bears: the soc ial relations of
sovereignty.

The exc eption remains quintessentially inserted in a relation of power whose referenc e point remains the soc ial.
The dec ision alone is never dec isive. Of the two sides of the exc eption—the power that invokes it and the power
that is being exc epted from the normal rule of law—Sc hmitt theoriz es only the first. Soc ial relations remain
theoretic ally exterior to, and systematic ally exc luded from, his c onc eption of sovereignty, as formaliz ed in politic al
dec isionism. Sovereign is he who dec ides over the state of exc eption—“an absolute dec ision c reated out of
nothingness” ([1922] 1985a, 66). This definitional narrowing—in fac t, erasure—of the net of determinations of the
dec ision to an unmediated subjec tive ac t is the essenc e of Sc hmitt’s idea of sovereignty. Quis iudicabit? Who will
dec ide? Soc ial forc es do not enter Sc hmitt’s definition of the extranormative dec laration of the state of emergenc y,
whic h remained analytic ally a suprasoc iologic al, extrac onstitutional (as well as ideologic ally antisoc ial) devic e—a
liminal c onc ept—for the restoration of order by exec utive forc e.

Desoc ializ ed, Sc hmitt’s c onc eption of sovereignty also remains c uriously depolitic iz ed: he seeks to identify an
Arc himedean point not only outside soc iety but also equally outside politic s—superinsulated from any soc iopolitic al
c ontestation—to neuter domestic politic s altogether: ultrasovereignty. This extrapolitic al vantage point is
deliberately c hosen—and here politic al theology and hyperauthoritarianism c onverge—to pinpoint that c himeric al
loc ation that restabiliz es soc ial proc esses from nowhere, ex nihilo, yet with overwhelming forc e: the apotheosis of
the state. But this “plac e beyond” belongs to the sphere of theology proper. Here, at the latest, politic al theology—
the c onc eption of sovereignty modeled on absolutism and the papal plenitude potestatis—c ollapses into arbitrary
state terror. Sc hmitt’s restrainer, c onc eptualiz ed as the forc e that “holds bac k,” transmogrifies into the Antic hrist
([1950] 2003, 59–62).

Sc hmitt’s c onc eption of sovereignty c onstitutes a normative presc ription, designed spec ific ally for a
hyperauthoritarian solution to the intrac table c risis of the Weimar state, and c annot func tion as a generic analytic
for ubiquitous invoc ations of emergenc y powers. In this c ontext, it should be rec alled that Sc hmitt’s dec ision to
define sovereignty in terms of the exc eption was not the result of a dispassionate and sc holarly enquiry into the
ultimate loc us of power but instead was a politic iz ed intervention into the jurisprudential debates on the
interpretation of the Weimar Constitution’s Artic le 48, on the sc ope of presidential emergenc y powers and
exec utive government by dec ree. For Sc hmitt, sovereignty should reside in the authoritative dec ision, rendering it
a nonrelational c onc ept, outside soc iety and even outside politic s—analogous to the mirac le in theology. Sc hmitt
explic itly related his notion of the exc eption to politic al theology rather than a historic al soc iology of public law. His
ultra narrow definition of the exc eption failed to develop a theoretic al perspec tive on sovereignty that would
enlarge its sc ope to inc orporate the historic ity of differential and c ontested soc ial relations of power. Sc hmitt
developed a legal-politic al register, unsupported by soc iologic al or politic al-ec onomic analogues. This does not per
se invalidate this register, but it leaves it suspended in midair. Sc hmitt c onstruc ted legal-politic al c onc epts against
the c risis of the Weimar state rather than c onc epts of the c risis. Sovereignty as exc eption is singularly unable to
inc orporate the soc ial forc es that c ontest sovereignty and to gauge the different c onstellations and transformations
between politic al authority and soc ial relations as well as geopolitic s and international law.

But this was the task set by The Nomos of the Earth and the turn toward c onc rete-order thinking in the mid-30s,
generating a reinterpretation of history as a suc c ession of spatial-legal nomoi that tied Sc hmitt’s present to a
seemingly remote and rec ondite past. Sc hmitt’s glorific ation of the c lassic al age of the European interstate
c iviliz ation—the jus publicum europaeum—served the purpose of depic ting the Anglo-Americ an c onc eption of
international law as degenerate and total, with Naz i Germany and Großraumpolitik as their rightful historic al
nemesis—in fac t, the torc h bearer of geopolitic al pluralism. Between the two c entral axes that sustain Sc hmitt’s
ideas of sovereignty—the brute ac t of land appropriation and the extrapolitic al state of exc eption—his invoc ation of
the jus publicum finds no systematic position. His approac h to c onstitutional and international law rec eives its
illumination from these two vantage points—above and below—but not from positivistic law itself. Sc hmitt’s
reinterpretation, from his disc ussion of the disc overies of the New World through to the Großraum regional bloc s,
osc illates permanently between two mega abstrac tions: the literal ac c eptanc e of the jus publicum, endorsing a
legal positivism and formalism that he otherwise violently c ontested; and the abstrac tion of spatial c onc retion,
whic h was originally meant to provide an antidote to the former. Between these two reific ations, any determinate
soc ial c ontent and proc ess disappears from view.

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Conc rete-order thinking fails to provide guidanc e on what proc esses drive the politic s of land appropriation and
world ordering. What c auses war? This leads to an asoc iologic al and c uriously nongeopolitic al—in the sense of
geopolitic s as an intersubjec tive c onflic t—stanc e: the nature of sixteenth-c entury Spanish absolutism, the relations
between the c onquistadores and the Spanish Crown, and the interimperial relations between the expanding
European overseas empires remain unexamined. The c onc rete proc esses of land appropriation, distribution, and
property relations in the Americ as—the geopolitic al c lash with the natives as historic al subjec ts—remain not only
off-sc reen but by definition also outside any purely politic al or geopolitic al notion of c onquest as c onc retion. In this
sense, c onc rete-order thinking remains blunt, sinc e the c onc epts for spec ifying the dynamic s of the soc ial
property and authority relations that drive overseas expansion are nowhere developed or deployed. Sc hmitt’s
nonsoc iologic al ac c ount of the New World disc overies is c ompounded by the absenc e of an inquiry into the
interpolitic al nature of the enc ounter. The native Amerindians remain missing from his ac c ount of the regionally
differentiated resolutions of land and property c onflic ts. They are not even ac knowledged as passive bearers and
vic tims of the inc oming Spaniards and Portuguese but instead are nullified and written out of history. Sc hmitt
c onc eives of the Americ as as a desubjec tified vac uum.

In the end, Sc hmitt provides no answer to his own question: what proc esses established the order of the jus
publicum? The “c onc rete” is largely the fac tual. The desc ending journey from the c onc rete to its manifold inner
determinations and the asc ending return journey to the c onc rete as a c onc rete in thought, c aptured in its ric h
inner determinations, are never undertaken. The c onc rete—fac tic ity—turns into an abstrac tion in Sc hmitt’s work.
But this c annot really be surprising: c onc rete-order thinking remains, throughout Sc hmitt’s work, stric tly
extrasoc iologic al sinc e the lateral dynamic s of geopolitic s and land appropriations remain abstrac ted from, and
nonartic ulated with, the vertic al dynamic s of soc ial relations and surplus appropriation. In fac t, it is self-c onsc iously
antisoc iologic al, in line with Sc hmitt’s generic Weltansc hauung as a c ounterrevolutionary étatist thinker. This
suppression and elimination of soc ial relations was, of c ourse, already prefigured in his c onc ept of the politic al,
whic h now informed his c onc ept of the geopolitic al. Both detac h the politic al, or geopolitic al, from the soc ial—in
fac t, prioritiz e and valoriz e the politic al and geopolitic al over and against the soc ial. This renders both the jargon of
the exc eption (the reformulated essenc e of sovereignty) and the jargon of the c onc rete (the reformulated essenc e
of territorial orders) abstrac t, formalistic , and explanatorily empty.

The Inventio n o f Schmitt’s Geo po litical Histo ry

Given the self-limitations of Sc hmitt’s theoretic al arc hitec ture, to whic h degree is his history of sovereignty, war,
and law still plausible? Is his history c onsistent with and c arried by his triple theoretic al axiomatic s? And what is the
ultimate ideologic al motive behind and fallout of Sc hmitt’s revision of the history of international law and order? This
sec tion argues that his historic al narrative is flawed bec ause the New World Disc overies did not prec ipitate, as
Sc hmitt admits, the spatial revolution that drove the c onstruc tion of the new nomos of the jus publicum.
Furthermore, it argues that Sc hmitt’s ac c ount of the absolutist state as an arc hetypic al dec isionist polity has long
been historiographic ally disc redited and suggests that his ac c eptanc e and glorific ation of the jus publicum as a
binding system of international law is empiric ally untenable and inc onsistent with his general c ritique of legal
positivism and normativism. It further shows that the prac tic e of early modern warfare was diametric ally opposed to
Sc hmitt’s definition of nondisc riminatory war as a rationaliz ed, c iviliz ed, and humaniz ed affair, subjec t to the laws
of war, and that the attempt to hedge and regulate war was de fac to the ac hievement of international humanitarian
law forc ed by liberal-c onstitutional states from the late nineteenth c entury onward. It argues that Sc hmitt’s
asc ription of the c ategory of total war to liberal states is historic ally problematic and c onc eptually misc onstrued, as
Sc hmitt deflec ted attention from Naz ism’s self-dec lared total war as a new c lass of war on whic h he remained
silent. It finally suggests that Sc hmitt had to abandon c onc rete-order thinking—without any admission—to theoriz e
the deterritorializ ing nature of Americ an imperialism, adopting a politic al-ec onomic theoretic al register on loan from
Marxist theories of informal imperialism. Inversely, he refused to theoretic ally ground Germany’s turn toward new
wars of aggression and c onquest in a politic al ec onomy of German Lebensraum/Großraum, opting instead for a
pure invoc ation of the friend–enemy distinc tion to rationaliz e Naz i expansionism. It c onc ludes by proposing that
these inc onsistenc ies and theoretic al failures are grounded in the systematic suppression of soc ial relations as a
c ategory of analysis to fully c omprehend the history of war, geopolitic s, and international law, rendering his
narrative empiric ally defec tive, theoretic ally flawed, and ultimately ideologic al.

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Did the Conquest of the New World Establish the Jus Publicum Europaeum?

While the Wehrmac ht marc hed toward Mosc ow and Stalingrad, Sc hmitt invoked in the early ‘40s the Spanish
disc overies of the Americ as to exemplify his thesis that revolutions in the struc ture of international law follow spatial
revolutions, whic h are themselves grounded in the fac t-setting ac ts of land c aptures: wars of c onquest (Sc hmitt
[1940] 1995b, [1950] 2003). But as soon as this thesis was announc ed, it was desc riptively immediately qualified
and retrac ted by Sc hmitt himself in his muc h subtler historic al analytic s of the impac t of the Disc overies on the
demise of the medieval c osmos and the rise of the new interstate nomos. In fac t, the latter history negates the
former thesis.

Any c loser reading of The Nomos shows not only that Sc hmitt was deeply ambivalent in his explanation of the
European interstate system—vac illating between the Conquista (1492), the rise of the absolutist state (1648), and
English balanc ing (1713) as the formative moment—but also that he explic itly exc luded the c onquests of the
Americ as from the c onstitution of early-modern Europe. His disc ussion of the rationaliz ation—jurisprudential and
material—of the c oloniz ation proc ess by Spain and Portugal reveals, paradoxic ally, that the c onquests did not
prec ipitate the spatial revolution and the subsequent rise of the new European interstate nomos that he generic ally
assoc iated with the enc losure proc esses overseas. This is most c learly expressed in his differentiation between
the rayas (divisional lines) and the amity lines. The first repartition of the oc eans after the Disc overies in the form of
the rayas was laid down in the 1494 Treaty of Tordesillas between Spain and Portugal, establishing a dividing line a
hundred miles west of the Az ores and Cape Verde: all the land west of the line should go to Spain and all the land
east of it to Portugal (Sc hmitt [1950] 2003, 88– 89; [1954/1942] 1997, 41). This meant the c onditional
territorializ ation of both the seas and the newly disc overed lands, as required by feudal land-holding patterns and
soc ial property relations (Tesc hke 1998). The Americ as, the Atlantic , and the Pac ific remained firmly within the
reac h of the late-medieval law-governed c osmos of the res publica Christiana, inc luding the papal missionary
mandate and the just war doc trine against non-Christians. “The later antithesis of firm land and free sea, dec isive
for spatial ordering in international law from 1713– 1939, was c ompletely foreign to these divisional lines” (Sc hmitt
[1950] 2003, 89). All land and sea remained jurisprudentially firm. At least formally, the Vatic an was still the c entral
supraterritorial sourc e of adjudic ation in Catholic Europe. Against Sc hmitt’s express purpose—the c entrality of land
appropriations for the c onstitution of the law-governed European interstate c iviliz ation—he shows that this c ausal
nexus does not hold.

The quantum leap to the jus inter gentes is prec ipitated not by the Salamanc a Sc hool but by Dutc h and English
sec ular jurisprudenc e, notably Grotius and Selden, in the Spanish– Dutc h/English debate on mare c lausum versus
mare liberum. The initial post-c onquest partition of the world between the Catholic powers along the rayas was
c hallenged only by the Spanish– Frenc h Treaty of Cateau-Cambrésis (1559) and the subsequent seventeenth-
c entury Anglo-Frenc h and Anglo-Spanish treaties that fixed the amity lines, dividing the world into a c iviliz ed (i.e.,
law-governed) z one within these lines and an anarc hic z one, a state of nature, “beyond the line” (Sc hmitt [1950]
2003, 94). This designated not only the land but also the sea beyond the line as free and lawless. Res nullius is
also res omnium—up for grabs by the strongest taker. It should be understood that the arguments for mare liberum
had nothing to do with free c apitalist c ompetition, as Sc hmitt obsc ured the distinc tion between free and open seas.
The notion of free sea simply referred to its non-law-governed status and implied permanent military rivalry over
the c ontrol of trading and shipping routes, as states tried unilaterally to territorializ e the seas rather than dec laring
them multilaterally open. Free trade ac ross open seas had to wait until the nineteenth c entury. Irrespec tive of this
misreading, he therefore loc ates the dec isive break from medieval Christian to early-modern prac tic es of spatial
ordering not in the fac t of the Disc overies per se but in the transition from the Spanish– Portuguese rayas system to
the Anglo-c entric amity lines. This initiated Americ a’s redefinition from an integrated appendix of the Euroc entric
Old World to a distinc t New World to be reappropriated and divided in a morally neutral agonal c ontest ac c ording to
the law of the stronger. Sc hmitt provides ample evidenc e—rayas, sc holastic ism, res publica Christiana—that rather
than dissolving the old medieval and c atholic cosmos, his purported spatial revolution of 1492 was jurisprudentially
assimilated to prevailing disc ourses of Christian expansion and aligned to late-medieval c ustoms of c onditional
territorializ ation.

The Jus Publicum and the Absolutist State: Decisionism or Social Collaboration?

Sc hmitt’s history of the rise and dec line of the jus europaeum evinc es another paradox. It c onsists in the

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Carl Schmitt’s Concepts of War

c ontradic tion between Sc hmitt’s interpretation and idealiz ation of the absolutist state as a dec isionist polity (literally
absolved from law; legibus absolutus), whic h gave free rein to rulers in imposing domestic law and order, and his
simultaneous embrac e of the jus publicum as a system of international laws and norms, whic h presc ribed
absolutism’s external (i.e., nondisc riminatory, c iviliz ed, and limited) wars and wider foreign affairs as law-abiding,
rationaliz ing military c onduc t subjec t to the jus belli ac pacis. A logic al problem is here c ompounded by a historic al
one. How, given Sc hmitt’s lifelong antipathy against legal positivism, c ould he suddenly embrac e legality over
politic al legitimac y? How c ould a system of mere norms tame the absolutist war mac hines of c ontinental Europe?
How c ould Sc hmitt assign exec utive sovereignty to omnipotent absolutist rulers while simultaneously c elebrating a
European-wide legal formalism that he otherwise c astigated intellec tually in his debates with Hans Kelsen? This
pretense to legality by the Great Powers is c harac teristic ally un-Sc hmittian. Logic ally speaking, the legal
groundlessness of the subjec tive dec ision should have operated in external relations as muc h as in internal affairs
—a c onc lusion that Sc hmitt failed to draw but that is muc h c loser to the historic al rec ord.

How does Sc hmitt’s ac c ount of absolutism and early modern warfare square with historic al researc h? Sc hmitt
defined absolutism as a fully rationaliz ed, sec ulariz ed, and morally neutraliz ed public order. Assisted by its
preparliamentarian c onstitutional nature, whic h exalted monarc hic al exec utive government, Old Regimes had
suc c essfully c arried through the distinc tion between the domestic and the international, the public and the private,
overc oming the religious and c ivil wars of the sixteenth c entury ([1926] 1995a; [1950] 2003, 140– 151). But sinc e
Sc hmitt was unc onc erned with the soc ial relations of sovereignty and power, his interpretation of the c lassic al
period of European interstate c iviliz ation, abstrac ted from the c lashing value c laims and c ompeting interests of c ivil
soc iety, turns out to be a historic al fic tion. Absolutist states, rather than institutionaliz ing a sec ulariz ed notion of
depersonaliz ed sovereignty that neutraliz ed domestic politic s and rationaliz ed interstate relations, remained
personaliz ed, soc iopolitic ally highly c ontested, legitimiz ed by divine authority, and embodied in the persons of their
respec tive princ es. And the multiplic ity of these dynastic houses ac ross Europe—and their interdynastic relations—
patterned the intense geopolitic al c onflic ts over land and people ac ross the period of the jus publicum.

Why does a soc ial interpretation of absolutism lead to this c onc lusion? And why is it more in sync with the
c ontemporary literature, Marxist and non-Marxist alike, on absolutism that has dominated the historiographic al
debate sinc e the 1980s (Beik 1985; Bonney 1995, 1999; Parker 1996; Ertman 1997; Gerstenberger [1990] 2007)?3
Class relations had developed in Franc e along a spec ific trajec tory sinc e the late Middle Ages (Brenner 1985).4
Here, soc ial c onflic t over the distribution of peasant surplus had replac ed by the seventeenth c entury the feudal
rent regime between lords and peasants in favor of an absolutist tax regime. Peasant c ommunities benefited from
c ompetition between the monarc hy and loc al nobles for their surplus, gaining freedom in the proc ess and
establishing inheritable tenures that owed fixed dues that subsequently lost value with inflation. With the waning of
the old feudal powers of lordly domination and extrac tion, the monarc hy bec ame the c entral institution that c ould
forc e inc ome from the peasantry through taxation. However, the relations of exploitation remained governed
throughout the Anc ien Régime (and even beyond) by politic al c onflic ts between the monarc hy and the aristoc rac y
over the terms and the distribution of the rights of appropriation, though now in the form of state-sanc tioned
privileges. Taxation bec ame the key arena of domestic politic al c onflic t. The logic of politic al ac c umulation—the
extortion of surplus from direc t produc ers through extraec onomic c oerc ion—c ontinued to rest on personaliz ed
praxes of domination, revolving around the personaliz ed sovereignty of the Crown: L’État, c’est moi!5 In the
c ontext of this soc ial property regime, a formal separation between the politic al and the ec onomic , the public and
the private, state and c ivil soc iety, c ould not be c arried through.

Sinc e the pressures for politic al ac c umulation persisted internally, the logic of geopolitic al ac c umulation, that is, the
predatory ac c umulation of territories and c ontrol over trade routes, c harac teriz ed foreign polic y as well. The
normal way to expand the tax base was to ac quire territory and c ontrol over its taxable population, driving a
territorial-demographic (extensive) mode of taxation. But sinc e absolutist sovereignty c ame to be personaliz ed in
the figure of the king, he also remained enmeshed in the Westphalian logic of dynastic unions through royal
marriage polic ies and its wars of suc c ession. Warfare was endemic . Territorial redistributions were a c onstant of
early modern international relations.

The old sword-c arrying aristoc rac y (noblesse d’épée), espec ially during and after the c risis of the seventeenth
c entury, c ame to be inc reasingly domestic ated, absorbed, and integrated into the tax/offic e state through offic e
venality and other c hannels of privilege, while a new offic e nobility (noblesse de robe) was promoted by the
Crown. These c omplex and ungovernable forms of interruling-c lass c ooperation c reated over time a very unstable

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and regionally differentiated modus vivendi between the privileged c lasses and the Crown, whic h William Beik
(2005) refers to as soc ial c ollaboration (2005). Its c enter bec ame the c ourt soc iety at Versailles—a jamboree of
patronage, c lientilism, and nepotism. Feudalism, based on the regionally and loc ally autonomous powers of the
militariz ed lordly c lass, was replac ed by the institutionaliz ation of aristoc ratic power in estates and other
representative and c orporative bodies, whose powers had to be c ontinuously renegotiated in relation to the Crown.
Autonomous lordly powers of domination were replac ed by state-sanc tioned privileges. Feudalism was dead, yet
absolutism never materializ ed (at least not in its orthodox meaning). To remain financ ially afloat and to pac ify the
offic e nobility, Frenc h monarc hs sold and auc tioned off public offic es in ever-greater numbers. Over time, venal
offic es were held in perpetuity and heredity and bec ame thus a privatiz ed sourc e of inc ome. The Crown thus lost
c ontrol over its fisc al, financ ial, and juridic al administration. It failed to establish a c entral bank or sec ure lines of
c redit and was also forc ed to borrow on short-term loans at high interest rates from a c lass of wealthy financ iers,
who were themselves often taxfarmers.

As a result, during every war, Frenc h kings were obliged to resort to the artific ial c reation and then the sale of more
and more offic es to raise money. They effec tively mortgaged the extrac tive powers of the state to private
financ iers and tax farmers. This led to the Byz antine and hopelessly bloated nature of the Frenc h semiprivate–
semipublic state apparatus. This ruled out any progress toward a modern, rationaliz ed, and effic ient bureauc rac y
that would administer a uniform and c ountry-wide tax c ode (i.e., a public rule of law) or would establish a state-
c ontrolled standing army, staffed by salaried professional soldiers. At the same time, the peasantry had to c arry
ever-higher rates of taxation so that the agrarian ec onomy—the tax base—remained mired in stagnation. While war
thus inc reased the absolutist c laims of Frenc h monarc hs over their subjec ts, it simultaneously paralyz ed their long-
term financ ial and administrative c apac ity to rule.

Sinc e early-modern states were not rationaliz ed public apparatuses but were c onfessional dynastic -c omposite
c onstruc ts c laiming a sac raliz ed form of sovereignty, public power was not detheologiz ed and neutraliz ed (Gorski
2000). While the age of absolutism did break with the transterritorial theologic al absolutism of the Vatic an, it
simultaneously fragmented the unitary c onfessional papal c laims and reassembled them ac ross the spec trum of a
pluriverse of c reedal mini-absolutisms, after 1555 and again after 1648. The Augsburgian formula cuius regio, eius
religio did not endorse religious toleration for private subjec ts but sanc tioned the right of regional rulers to
determine and enforc e the faith of the land. In the Frenc h c ase, the nasc ent absolutist state did not simply guard
over the de-politic iz ed and neutral c harac ter of domestic politic s and religion but ac tively established during the
Reformation and the Wars of Religion (1562–1598) its Catholic absolutism in violent, direc tly politic iz ed, c entury-
long c ampaigns, c ulminating in the repression and expulsion of the Huguenots with the Revoc ation of the Edic t of
Nantes (1685). Absolutism did not rise above the warring c ivil parties but repressed one of them, giving rise to
monoc onfessionaliz ed, even sac raliz ed states. Against this bac kground, Sc hmitt’s rendition of absolutism as the
embodiment of a dec isionistic polity c annot be sustained.

Was Early-Modern War a Rational and Civilized Affair?

Correlatively, the praxis of Anc ien Régime warfare c ontrasts sharply with Sc hmitt’s nondisc riminatory c onc ept of
war as a brac keted war in form: c iviliz ed; rationaliz ed; limited; and humaniz ed. While there is some evidenc e to
suggest that the notion of Kabinettskriege attempted to rationaliz e the c onduc t of battle, the pairing of limited and
total—more prec isely, absolute—war, whic h Sc hmitt adopted from Clausewitz , is too c oarse to c apture the nature
of early modern warfare.6 Clearly, Napoleonic and post-Napoleonic warfare marks a qualitative shift in the nature of
military affairs, though this does not mean that prerevolutionary warfare c an be generic ally referred to as
brac keted or limited in Sc hmitt’s sense. His idealiz ation of Anc ien Régime warfare is c ompromised by the
frequenc y, magnitude, duration, and intensity as well as the c osts and c asualties of early-modern c onflic ts. For
example, at the end of the Seven Years’ War, c asualty figures in the Prussian Army stood at 180,000 soldiers,
whic h was the equivalent of two-thirds of its total siz e and one-ninth of the Prussian population (Anderson 1988).
This was partly due to innovations in military tec hnology, inc luding the development of firearms, artillery, and new
tec hniques like infantry volley fire, and partly to the existential threat of territorial dismemberment and repartition
posed by defeat to dynastic Houses. While c asualty figures in early-modern wars do not by themselves disc redit
the c ategory of brac keted warfare, Sc hmitt’s purely legal c ategory is unable to dec ipher the soc ial sourc es of and
real nature of Old Regime warfare, powered by the requirements of prec apitalist geopolitic al ac c umulation.

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Military praxes render Sc hmitt’s c laim of its c iviliz ed, rationaliz ed, and humaniz ed c harac ter implausible, given the
nonc omplianc e with the nominal c onventions of war, the nondistinc tion between c ombatants and nonc ombatants,
the c ustoms of rec ruitment, and the problems of provisioning (Kroener 2000). The effec ts of war on c ivilian
populations were devastating. Sinc e war logistic s were not properly developed and soldiers lac ked permanent
provisioning, early-modern armies lived off the land, either by looting and pillaging on foreign soil or by way of
sequestration and ransom. Armies tended to ransac k c ivilian areas in an effort to feed themselves, c ausing
plunder, rape, famines, and population displac ement. Bellum se ipse alet (war feeds off itself) c aptures this
predic ament. The absenc e of a c lear set of rules and powers of enforc ement c onc erning the treatment of prisoners
and nonc ombatants implied their ransom for money or other prisoners, if they were not killed outright.7 Forc ed
c onsc ription of c ivilians was a c ommon prac tic e. Any soc iology of c ontemporary armies shows that, in spite of all
the Weberian and Fouc auldian emphasis on the inc reasingly rationaliz ed, professionaliz ed, and disc iplined
c harac ter of the new standing armies, soldiers were generally not salaried bureauc rats but were in pay of noble
offic ers who had usually themselves bought their military c ommissions. Armies were not public armies but prec isely
the king’s armies yet were essentially beyond their disc iplinary c ontrol (Kroener 2000, 205).

While most of these wars of suc c ession and trade wars were largely redistributional, in terms of land and c ontrol of
trade routes, and thus were limited in their war aims, they were simultaneously total insofar as whole regions and
kingdoms vanished (Polish Partitions). The notion of justus hostis (a just enemy) whose territory and order would
remain intac t after defeat was a legal fic tion. This manifested itself by an imperial, if not totaliz ing, drive toward the
infinite ac c umulation of land and booty, as evidenc ed in aggressive outward orientation—c olonialism. Most of these
wars of suc c ession, from the Wars of the Spanish and Austrian Suc c ession to the Seven Years’ War, were
multilateral if not world wars. This would also qualify Sc hmitt’s thesis that the assignment of the lands and seas
beyond the line—the externaliz ation of the international state of nature from Europe—c aused the c iviliz ation of
intra-European warfare, as c odified in the droit public de l’Europe.8

It is furthermore unc lear how Sc hmitt’s argument on early modern limited war c an be squared with the standard
historic al argument that Old Regime permanent war states or fisc al-military states suc c umbed to their military
expenses, leading—with the important exc eption of c apitalist Britain—to fisc al c rises, bankruptc ies, and state
c ollapse (Skoc pol 1979; Brewer 1988; Contamine 2000a; Glete 2002; Storrs 2009). Early modern intra-European
wars were not oc c asional rule-governed c ontests—prettified by Sc hmitt as gentlemanly duels—narrowly
c irc umsc ribing the external relations of states within an essentially stable interstate order but were a c ontinuous,
struc tural presenc e, deeply rooted in the nature of soc ial relations that reac hed into and finally transformed their
very soc iologic al c ores. Anc ien régime polities were not only soc iologic ally transformed under the pressure of
military rivalries but also eventually were exhausted and destroyed by the c ombination of spiraling war
expenditures, mounting public debts, fisc al c rises, repressive rates of taxation, and soc ial disc ontent, leading in
the c ase of Franc e to 1789. Wars eventually devoured their own masters—dynastic Houses. The idea of
nondisc riminatory warfare regulated by the jus publicum is a fic tion, designed to promote the early-modern epoc h
as the paragon of c iviliz ed warfare against whic h the subsequent desc ent to the liberal era of total war c an appear
only as a dec iviliz ing perversion. Sc hmitt’s whole ac c ount of the Westphalian system is both empiric ally and
theoretic ally deeply flawed.

Who Civilized War?

Throughout his narrative, Sc hmitt stresses that the delimiting of war, its esc ape from the c onfines of the jus
publicum, was a result of the total wars perpetrated by liberal states, driven by a reversal to just war thinking,
whic h turned former just enemies into mere foes, c riminals, and outlaws. This unleashed the absolute moral
judgments that c harac teriz ed the new disc riminatory c onc ept of war after 1919. The limited and c iviliz ed wars of
yore were replac ed by the total wars of liberal states. Sc hmitt imputes throughout that absolutist states, rather than
liberal states, artic ulated, c odified and prac tic ed the jus in bello. But any c loser inspec tion suggests—and standard
histories of international humanitarian law c onfirm (Roberts and Guelff 2000; Neff 2005, 159– 214; Kalshoven and
Zegveld 2011)—that the attempt to c iviliz e and regulate the c onduc t of armed hostilities (to c odify war as a legal
institution) did not originate within the jus publicum europaeum but was the distinc t ac hievement of primarily
liberal-c onstitutional states in the c ontext of the rise of legal positivism. This was enshrined in the growing body of
multilateral treaty law throughout the sec ond half of the nineteenth c entury: the 1856 Paris Dec laration Respec ting
Maritime Law abolished privateering, a standard prac tic e fully supported by early-modern states as they regularly

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Carl Schmitt’s Concepts of War

enlisted pirates as c orsairs and privateers in the servic e of monarc hies, blurring the distinc tion between public
armed forc es and private subjec ts, c ombatants, and nonc ombatants; the 1864 First Geneva Convention prosc ribed
rules for the amelioration of the wounded and sic k in armed forc es in the field; the two Hague Conventions of 1899
and 1907, the two most substantial pre-WWI agreements on the laws of war, spec ified rules, among others, for the
pac ific settlement of disputes, the opening and c losing of hostilities, the laws and c ustoms of war on land, the rights
and duties of neutral powers and persons in c ase of war, the status of enemy merc hants ships, the laying of
automatic submarine c ontac t mines, the bombardment by naval forc es, and the adaptation to maritime war of the
princ iples of the Geneva Convention; the 1925 Geneva Protoc ol prohibited the use in war of asphyxiating,
poisonous and other gases and of bac teriologic al methods of warfare; and the 1929 Geneva Convention pertained
to the treatment of prisoners of war.

None of these multilateral and open-ended treaties outlawed wars per se and left therefore the sovereignty of
liberal and illiberal states (the jus ad bellum) intac t. Furthermore, the series of c onventions and protoc ols that litter
the sec ond half of the nineteenth c entury c onstitute in their majority innovations rather than c odific ations of
existing prac tic es. Sc hmitt either c onsc iously suppressed or simply failed to note the fac t that all major multilateral
treaties on the laws of war and international humanitarian law were suggested and enac ted primarily by liberal-
c onstitutional states. Inversely, his disc ussion of the laws of war during the early modern period relied primarily on
the textual exegesis of moral philosophy, politic al theory, and sc holastic thought, c onduc ted without any attempt to
pursue the question whether these deliberations—from the Salamanc a Sc hool to Grotius and Vattel—were ever
c odified in international treaty law or abided to on the battleground. Pre-WWI “liberal” international law developed a
nondisc riminatory c onc ept of war brought into form by a positivistic jus in bello, governing armed hostilities.
Sc hmitt’s attempt to identify a liberal c onc ept of disc riminatory war with just war, and both with total war,
suppressed the admission that liberal states themselves sought to detotaliz e liberal war by hedging and brac keting
the c onduc t of war.

To tal War, American Imperialism, Fascism

This c ritique objec ts to only one aspec t of Sc hmitt’s analysis of liberalism’s total wars—the assignment of the jus in
bello to absolutism rather than to liberalism’s attempt to bring wars into form—and leaves his argument of liberal
wars as polity and soc iety-reshaping exerc ises untouc hed. But even here, Sc hmitt’s argument is misleading. While
his Weimar writings targeted US imperialism, he reserved spec ial venom in his fasc ist period for the British prac tic e
of total war, grounded in its maritime tradition of c onduc ting naval warfare. Sinc e Britain—amphibious and
autothalassic al in nature—was never fully integrated into the c ontinental tradition of limited land warfare, it was the
arc h-representative of total war: “naval wars were based on the idea of the nec essity of treating the enemy, trade
and ec onomy as one. Henc e the enemy was no longer the opponent in arms alone, but every inhabitant of the
enemy nation, and ultimately, every neutral c ountry that had ec onomic links with the enemy” ([1942/1954] 1997,
47). Maritime powers not only reformulated international law but also pioneered the praxis of total war and the
c ategory of the total enemy, inc luding the nondistinc tion between c ombatants and c ivilians and the nondistinc tion
between ac ts of war and ac ts short of war (bloc kades, c apture of merc hant men, ec onomic sanc tions). Ac c ording
to Sc hmitt, liberal wars were total, presupposing a total enemy as the total population bec ame the target of war
([1938] 1994, [1943] 2005b).

But while Sc hmitt’s legal dissec tion of Anglo-Americ an imperialism, the Versailles Treaty, the League of Nations, and
the new notion of disc riminatory war was effec tive, it c ould not be rec onc iled with his method of c onc rete-order
thinking. For the analysis of Americ an imperialism was now shifted onto a muc h deeper soc iologic al terrain that
gave Sc hmitt a privileged insight into the struc tural transformations of international law and order at the start of the
twentieth c entury. These revolved around the developing dualisms between international public law and
transnational private law, a territorial interstate order and a subterritorial world ec onomy, a public pluriverse and a
private universalism, grounded in the separation between the politic al and the ec onomic ac ross the member states
of the international system. Sc hmitt lays bare the struc tural c orrespondenc e between a transnationaliz ing
c apitalism and Americ an postwar grand strategy ([1950] 2003, 235, 255). These struc tural c omplementarities
inform Sc hmitt’s analysis of the Americ an vac illation between isolationism and internationalism, enc apsulated in the
dialec tic between politic al absenc e and ec onomic presenc e, ethic al pathos and ec onomic c alc ulation: informal
empire.

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The United States, after Versailles, was politic ally absent in Europe, both as a league member and as an oc c upying
power, yet it was ec onomic ally present by its insc ription of free trade and its politic al prec ondition: the
generaliz ation of liberal c onstitutionalism, private property relations, the rights-bearing and free individual, and the
rule of law into the League’s Covenant. This strategy, ac c ording to Neil Smith, presented a politic al projec t of global
domination—the rationaliz ation of global spac e driven by a nonterritorial c apitalist imperialism for Americ an
ec onomic Lebensraum (2004). This rested on the c entral insight that ec onomic expansion c ould be dec oupled
from territorial aggrandiz ement, divorc ing politic al geography from international ac c umulation. In this way, the
flattening of differentially organiz ed politic al territories and their submission to c ommon legal princ iples sanc tioned
a c onstitutive dualism between the proliferation of liberal-c onstitutional states and the expansion of a borderless
private world market.

But if Sc hmitt’s argument demonstrated the struc tural prec onditions for global Americ an domination, it
simultaneously imperiled and transformed three c ore assumptions of his theoretic al-historic al axiomatic : an
unwitting erasure of his ac c ount of the c lassic al jus publicum; a retrac tion from c onc rete-order thinking; and a turn
toward a transnational ec onomism, selec tively applied to the United States and brac keted for Germany. For if the
separation between the public interstate and the private substate bec ame rec ogniz ed in international law in the
c ourse of the nineteenth c entury and politic ally operationaliz ed by the United States post-1919, then this
overturned his generic thesis of the status of the jus publicum as genuinely public interstate law.

Sec ond, Sc hmitt’s theoretic al exc ursion into the field of international politic al ec onomy forc ed him to c hange
theoretic al register—a volte-fac e not lic ensed by his method of c onc rete-order thinking. Where Sc hmitt exc avates
the roots of the new universal order, he is pressed into an analysis of the international politic al ec onomy of
Americ an world order—falsifying his axiomatic statement that every international legal order is grounded in an
original ac t of land appropriation. The predominantly nonterritorial nature of the US restruc turation of the interwar
European order provided a direc t refutation of Sc hmitt’s axiomatic thesis of international orders based on land
grabs: Germany, though trimmed in siz e and regime c hanged, like Austria-Hungary and the Ottoman Empire, was
neither oc c upied nor annexed. Sc hmitt’s ac c ount of the dissolution of the jus publicum—suggesting a c onstitutive
nexus between the spac e-c anc eling tendenc ies of transnational c apital and the transition from the jus publicum to
the age of international law—direc tly unhinges the premise of his c onc rete-order thinking. This abrupt turn toward
international politic al ec onomy c onstitutes a theoretic ally unc ontrolled move, not lic ensed by his own method. This
forc es him to deploy a Hegelian-Marxist figure of thought: the separation between the politic al and the ec onomic ,
with its international analogue; the separation between a territorializ ed interstate system and a private,
transnational world market ([1950] 2003, 293– 4). Simultaneously, this turn toward the separation argument c anc els
his c entral thesis that the jus publicum rested already on the differentiation between public statehood—with the
institutionaliz ation of the early-modern interstate system—and private c ivil soc iety. Capitalism’s border-c anc eling
tendenc y also c anc els Sc hmitt’s c ore method and c ore thesis. As the novelty and distinc tiveness of US world order
is not rooted in a logic of territorializ ation—but in an attempt to promote informal empire—this negates and
transc ends Sc hmitt’s now c uriously anac hronistic notion of c onc rete-order thinking and his spatializ ed
c ounterprojec t: a German Großraum.

Third, Sc hmitt had pressed too far the argument about the geopolitic s-dissolving effec ts of c apitalist expansion. For
the period between 1880 and Versailles and beyond did not simply c onstitute a passage, however c haotic and
disorderly, from the jus publicum to a universal international law or, alternatively, from interstate geopolitic s to a
spac e-c anc eling ec onomic universalism. It rather experienc ed first the intense interimperial rivalries among the
c apitalist European empires and their assoc iated reterritorializ ations of the world, before the settlement of WWI
launc hed a supremely power-politic al projec t of the Americ an state. This involved the territorial, military, politic al,
and c onstitutional rec onfiguration of Europe as an ongoing grand strategy of Americ an power projec tion. The result
was not a depolitic iz ed liberal spac eless universalism but an attempt to rec onstitute and align European politic al
geography with Americ an ec onomic and sec urity c onc erns, inc luding the c reation of the cordon sanitaire as a
buffer z one against the Soviet Union. Sc hmitt overinterprets the spac e and geopolitic s—dissolving impac t of Anglo-
Americ an c apitalism after Versailles and effec tively embrac es a transnational ec onomism that out-Marxed Marx.
Sc hmitt failed to see the differenc e between a spac eless universalism—a universal liberal empire—and a US-
supervised European interstate system. The c ombination of the League of Nations system and Americ an grand
strategy did not lead to an apolitic al and deterritorializ ed spac eless universalism during the interwar period. Rather,
it only rec onstituted and aligned European politic al geography with Americ an ec onomic and sec urity c onc erns

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Carl Schmitt’s Concepts of War

without erasing the interstateness of the c ontinent—as German Großraumpolitik itself was to demonstrate.

How was that possible? As Weimar Germany was already fully integrated into the world ec onomy when Großraum
thinking started to preoc c upy Sc hmitt in the 1930s, he was forc ed into yet another theoretic al volte-fac e. He turned
away from international politic al ec onomy and reembrac ed a spatial-legalistic register that c apitalist imperialism, by
his own reasoning, either had long dissolved or—but this c ould not feature in Sc hmitt’s theory—had regenerated
through the general c apitalist c risis of the 1929 Great Depression, sweeping fasc ism to power. But as the prec epts
of international politic al ec onomy were reserved by Sc hmitt to Anglo-Americ an imperialism and never applied to
German imperialism, his legal-politic al argument about the desirability of a universalism-bloc king c onc ept of
German Großraum remained stric tly beyond the c onfines of the analysis of c apitalism. Although Sc hmitt gestured
inc onc lusively toward the transc endenc e of the c lassic al c onc ept of the territorial state driven by the ec onomic
imperatives of a Groβraumwirtsc haft (ec onomic greater spac e) as a sphere of ec onomic performanc e
(Leistungsraum) ([1939] 2011d), he was theoretic ally unable to ground the turn toward German c ontinental
autarc hy in a series of suc c essive German strategic polic y c hoic es within the wider c ontext of the post-1929 c risis
of the world ec onomy (Opitz 1977). Consequently, the legal c onc ept of the Groβraum had to be de-ec onomiz ed
and anc hored in a reassertion of the politic al in the abstrac t, the friend– enemy distinc tion, arising like a deus ex
mac hina from an identitarian notion of völkisch democ rac y.9

But this raises the final question of why Sc hmitt, as a trained c onstitutional and international jurist, never sought,
two short diatribes apart ([1940] 1995b; [1937] 1999), to c ategoriz e and plac e the spec ific form of Naz i warfare
within his legal and politic al history of warfare. Total war as a distinc t c lass of warfare—normally defined as the
c omplete mobiliz ation of soc iety and ec onomy for the war effort, the nonseparation between c ivilians and
c ombatants, the nondistinc tion between military and c ivilian targets and the partial suspension of the laws of war,
possibly involving the c omplete annihilation of the enemy—was the express purpose of the Naz i regime, offic ially
sinc e 1943 as the latest. While Goebbels gave his infamous 1943 Sportpalast Speec h, dec laring total war, Sc hmitt
ruminated on the Spanish Conquista.10 Given that Sc hmitt himself drew a line from Frenc h revolutionary warfare via
General Ludendorff’s 1935 World War I memoir Der Totale Krieg to WWII, why did he not define total war—perhaps
in the c almer waters of the 1950s German Federal Republic when The Nomos of the Earth was eventually
published—as the ultimate perversion of any ac hievements, absolutist or liberal, in the evolution of international
humanitarian law? It is surely a moral monstrosity and intellec tual obsc enity to wrongly asc ribe limited warfare to
absolutism and c astigating liberal warfare as total, while Naz i Germany c onduc ted a total war and wars of
extermination, systematic ally ignoring the most minimal c onventions of war, pursuing sc orc hed earth tac tic s, and
perpetrating state terror and mass killing on an industrial sc ale. What is Sc hmitt’s legal and politic al c onc ept of war
in German total warfare? Sinc e it is now c ompared to the Conquista—however c ryptic ally—it appears as a
prejuridic al ac t without any justa causa and without any laws of war, not even a papal mandate.

And what is Sc hmitt’s c onc ept of the German enemy? If it is no longer justus hostis, then it must have been a new
type of foe—not even the alleged liberal c riminal and nonhuman but a total enemy and more likely the subhuman.
While the Naz i c onc eption of the enemy was rac ializ ed, demoted, and perverted to the status of a subhuman (at
least on the Eastern Front), Sc hmitt felt obliged to denounc e Anglo-Americ an war as total: “there is an Anglo-Saxon
c onc ept of enemy, whic h in essenc e rejec ts the differentiation between c ombatants and non-c ombatants, and an
Anglo-Saxon c onc eption of war that inc orporates the so-c alled ec onomic war. In short, the fundamental c onc epts
and norms of this English international law are total as suc h and c ertainly indic ative of an ideology in itself total”
([1937] 1999, 34). While Sc hmitt’s transition from the c lassic al interstate war to the liberal wars of pan-
interventionism c onferred the title of total war to the Anglo-Americ ans, Sc hmitt preferred to remain silent throughout
his life on Naz i warfare—the alleged land c aptures designed to bring about a new nomos of interregional legality.

Co nclusio n

Sc hmitt’s evolving c onc eptualiz ations of war are the intellec tual produc t of an ultra-intense moment in his friend–
enemy distinc tion in the passage from his struggle against Weimar, Geneva, and Versailles to his embrac e of
National Soc ialism—the forging and reforging of c onc epts and positions c onc eived as intellec tual c ombat. These
c onc epts were flanked by deeper theoretic al shifts—from dec isionism and his c onc ept of the politic al to c onc rete-
order thinking—meant to sec ure and ground c onc ept formation. This led to a tendentious and often falsifying
ac c ount of war within a revised history of international law and order. Sc hmitt insc ribed Hitler’s spatial revolution

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Carl Schmitt’s Concepts of War

into a full-sc ale reinterpretation of Europe’s geopolitic al history, grounded in land appropriations, whic h legitimiz ed
Naz i Germany’s wars of c onquest. Consequently, Sc hmitt’s elevation of the early modern nomos as the model for
c iviliz ed warfare—the golden age of international law—against whic h Americ an legal universalism c an be portrayed
as degenerated, is c onc eptually and empiric ally flawed. Sc hmitt devised a politic ally motivated set of theoretic al
premises to provide a historic al c ounter-narrative against liberal normativism, whic h generated defec tive history.
The rec onstruc tion of this history reveals the explanatory limits of his theoretic al voc abulary—friend– enemy
binary, sovereignty as exc eption, nomos– universalism—for past and present analytic al purposes. Its ultra-politic ist
and spatial-étatist c ast remained too restric tive to c apture the phenomena at hand, as the reading of history in
horiz ontal terms failed to inc orporate soc ial relations into the dynamic s of war and peac e. Wherever Sc hmitt
attempts to penetrate the soc ial, he either mobiliz es a geomythologic al register—British maritime existenc e, land
versus sea—or betrays his own method, borrowing liberally from politic al ec onomy. At c ruc ial moments in this
large-sc ale reinterpretation—1492, absolutist sovereignty, early-modern warfare, British seventeenth-c entury
sovereignty, the c lassic al period of the new imperialism, the origins of WWI, US informal imperialism, the c risis of
the Weimar Republic , Hitler’s spatial revolution—the methods of dec isionism, the friend– enemy binary, and
c onc rete-order thinking disintegrate. They simply fail to reveal the soc ial dynamic s that drive transformations in the
nature of authority and sovereignty relations, the soc ial sourc es of land appropriations and spatial
rec onfigurations, or developments in the historic al genealogy of war and peac e. Furthermore, world-historic al
events that upset Sc hmitt’s spatial-étatist perspec tive—the origins of c apitalism and the Industrial Revolution; the
Frenc h Revolution and Napoleon; the late nineteenth-c entury New Imperialism and interimperial rivalry; the interwar
Great Depression; the Bolshevik Revolution; fasc ist Ec onomic Grand Strategy—are either expunged from his
ac c ount or rec eive short shrift. Sc hmitt’s international politic al thought and historic al narrative are empiric ally
untenable and theoretic ally flawed—replete with performative c ontradic tions, subterranean reversals of theoretic al
positions, omissions and suppressions, mythologiz ations and flights into épreuves étymologiques. Sc hmitt’s
c onc rete-order thinking c onstitutes a rudimentary and failed attempt to develop a history of international law and
geopolitic s, whic h ultimately regresses into a Euroc entric historic o-legal theory of geopolitic al oc c upation tel quel.

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Notes:

(1) Münkler 1992 remains an exc eption, though his ac c ount is restric ted to a summary of Sc hmitt’s argument. His
later work, whic h introduc es the distinc tion between Old Wars and New Wars, relies on Sc hmitt’s c onc eption of
early modern wars as c lassic al state-to-state affairs (2002, 68, 114).

(2 ) For a more detailed exposition of the following argument see Tesc hke 2011a, 2011b, and 2011c and
Balakrishnan’s 2011 reply.

(3 ) It should be noted that the argument for the de-absolutiz ation of absolutism is not restric ted to c ontemporary
revisionist historians but was already widely proposed in the German literature in the interwar period and thus was
available to Sc hmitt. See, for example, Joseph Sc humpeter’s [1919] 1955 essay on the “Soc iology of Imperialism,”
whic h, in spite of its key thesis that imperialism c onstitutes the objec tless disposition toward unlimited forc eful
expansion, provides a c onvinc ing analysis of the struc turally bellic ose nature of absolutism, grounded in c lass
relations. See also Hans Delbrüc k’s [1920] 1990 c lassic work. Sc humpeter was a c olleague of Sc hmitt at the
University of Bonn in the 1920s, and Sc hmitt c ited his “Imperialism” essay in his Concept of the Political. See also
Sc heuerman 1999, 198. In earlier writings, Sc hmitt [1926] 1995a (98), himself qualified the dec isionistic c harac ter
of absolutism by noting that the king had to pay heed to the aristoc rac y, the bureauc rac y, c ustomary law, and
natural law.

(4 ) For an alternative history and theory of the rise and dec line of the Westphalian system see Tesc hke 1998,
2002, 2003, 2006.

(5) The c onc ept of politic al ac c umulation was originally developed by Robert Brenner 1985 (238– 239), to c apture
the fac t that under feudal soc ial property relations the transfer of surplus from produc ers in possession of their
means of reproduc tion (peasants) to nonproduc ers in possession of the means of violenc e (lords) had to rely on
extra-economic c oerc ion, a term originally suggested by Karl Marx [1894] 1981 (926– 927) to grasp the nature of
reproduc tion in all nonc apitalist c ommunities. Politic al ac c umulation is therefore not so muc h an anti-ec onomistic
c onc ept but rather indic ates that the politic al (the state) and the ec onomic (the market) were not separate
institutional spheres in prec apitalist Europe with their own distinc t logic s (power and market c ompetition via pric es).

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Carl Schmitt’s Concepts of War

The rate of surplus appropriation therefore always involved soc ial c onflic t over the normative and politic al terms
and obligations of the produc er– appropriator relationship. This inc luded also tendenc ies to the “build-up of larger,
more effec tive military organiz ation and/or the c onstruc tion of stronger surplus-extrac ting mac hinery” (Brenner
1977, 238) in the late Middle Ages, leading in some c ases from the parc eliz ed sovereignty of the feudal
Personenverbandsstaat (state of assoc iated persons) to the more c entraliz ed Old Regime states. The c lassic al
debate over whether to define feudalism as a politic al phenomenon revolving around a partic ular type of
domination or as an ec onomic phenomenon revolving around a partic ular mode of produc tion is therefore
misplac ed.
(6 ) For c ritiques of the hedged nature of Cabinet Warfare see Göse 2007; Externbrink 2011.
(7 ) See Contamine 2000b for the slow and uneven growth of state c ontrol in relation to these prac tic es.
(8 ) Sc hmitt’s idea of no peac e beyond the line appears as yet another myth. See Fisc h 1984; Stirk 2011.
(9 ) Cf. Sc hmitt’s [1950] 2003 c ryptic statement: “The United States believed it c ould turn the politic al into an
external faç ade of territorial borders, that it c ould transc end territorial borders with the essential c ontent of the
ec onomic . But, in a dec isive moment, it was unable to prevent the politic al grouping of friend and enemy from
bec oming c ritic al” (258). This politic ism sits rather uneasily with Sc hmitt’s position on the ac ademic advisory board
of the Gesellsc haft für Europäisc he Wirtsc haftsplanung und Groβraumwirtsc haft (Soc iety for European Ec onomic
Planning and the Greater Spac e Ec onomy), founded in 1941; Opitz 1977 (930–933).
(10 ) The analogy is explic itly drawn by Sc hmitt in 1940 as the expec ted spatial revolution of WWII is direc tly likened
to the spatial revolution of 1492; Sc hmitt [1940] 1995b (388).
Benno Teschke
Benno Teschke is a Reader in the Departm ent of International Relations at the University of Sussex.

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