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Bruno Bosteels

The Obscure Subject:Sovereignty and Geopolitics in Carl Schmitts

The Nomos of the Earth

Writing with the bold pathos that no doubtcomes from his experience in captivity afterWorld War II, Carl Schmitt in his autobiographi-

cal Ex captivitate salus claims to be standing on athreshold, as the guardian of a world order that

is about to be drowned out in forced silence:

I am the last conscious representative of the

jus publicum europaeum, its last theoretician andinvestigator in an existential sense, and I experi-

ence its end just as Benito Cereno experiencedthe voyage of the pirate ship. This is the time

and place of silence. We should not be afraid

in this regard.1 Like Herman Melvilles fictive

Spaniard, Schmitt presents himself as an invol-

untary witness to the threatening decline of a

great world order. Even more so than Don Benito

Cereno, though, perhaps it is a character from

a story by Jorge Luis Borges, first published in

February 1946, who provides a more accurate

analogy to Schmitts existential and scholarly

situation in the summer of that same year. Thus,

writing from his prison cell in an attempt, if not

to justify, then at least unabashedly to proclaim

his role at the head of a Nazi concentration

camp, Otto Dietrich zur Linde, the narrator of

Deutsches Requiem, concludes his would-be

testament as follows:

The South Atlantic Quarterly 104:2, Spring 2005.


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296 Bruno Bosteels

Many things must be destroyed in order to build the new order; now

we know that Germany is one of those things. We have given some-

thing more than our lives, we have sacrificed the fate of our beloved

country. Let others curse and cry; to me it gives great pleasure that our

gift should be orbicular and perfect. An unforgiving era now closes in

on the world. We have created this era, we who already are its victims.

What does it matter that England is the hammer and we, the anvil? The

important thing is that violence reign all-powerful, and not the servile

shynesses of Christianity. If victory and injustice and happiness are not

for Germany, may they befall other nations. May heaven exist, even if

our place is hell.2

Even if those great sea powers, England or the United States of America,

are the hammer, and Germany the anvil, at least a new spatial order already

has been forged, and a new era already has begun. Beyond the visible defeat

of the Third Reich there lies a secret world-historical victory. Ruled by vio-

lence, a new global ordera new nomos of the earthalready has beenmarked out, one that is both perfect and orbicular, to use Borgess apt

neologism.

Perhaps, though, this arcane victory is not unavoidable. Perhaps the alter-

native between victory and defeat is even a false one. Perhaps we are con-ceding already too much as soon as we accept the logic behind the argument

for any nomos of the earth at all, whether old or new. For a critique of TheNomos of the Earth in the International Law of the Jus Publicum Europaeum,the issue cannot be limited to inverting the respective places of hammer

and anvil, not even in order to add a sickle; rather, it is a question of inter-

rupting the very logic of the nomos before we become its unwitting victims,even while claiming to be its noblest opponents. My aim therefore is not to

correct or amend the concrete findings and potentially useful, even vision-ary, data in Schmitts book, but to debunk its most stubborn theoretical

presuppositions.

A treatise on the rise and fall of European international law, a contorted

but never reluctant imperialist doctrine parading in the guise of a scien-

tific history of the principle of territoriality, an essay on what might as well

have been called the concept of the geopolitical: whatever else SchmittsThe Nomos of the Earth legitimately can purport to be, it is also, at least

implicitly, a grand theory of the eventof land appropriation as the origi-nary event of all human history. Quoting Kant, Schmitt writes: This law

of mine and thine that distributes the land to each man as he puts it is


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The Obscure Subject 297

not positive law in the sense of later state codifications, or of the system of

legality in subsequent state constitutions; it is and remains the real kernel

of an entirely concrete, historical and political event [eines ganz konkreten,geschichtlichen und politischen Ereignissen], namely the appropriation of theland.3 The status of this event, however, remains ambiguous throughout

the book and, rather than avoiding this ambiguity, the repeated emphasis

on the historically authentic nature of the act of land appropriation only

highlights, as if through a symptomatic excess of speech, the problems that

beset the logic of the nomos as a whole.Briefly put, land appropriation is an act or event that can be found at the

beginning of every community, people, or empire; and yet, it should not be

confused with a purely hypothetical origin or an empty theoretical fiction ofthe kind found in normativist and contractualist theories. Schmitt, in order

to preempt this confusion, is at pains to bring out the historical substance

behind the originary acts of appropriation. He refers to the Greek sea appro-

priations as world-historical events of revolutionary significance, just as

the legendary and unforeseen discovery of a new world, which marks the

onset of the modern nomos orjus publicum Europaeum, appears as an unre-peatable historical event for which we today can imagine only fantastic

parallels (44/15, 39/6). Ultimately, though, the aim is not just to sketch ina historiography of such rare and unrepeatable events but rather, on a much

more profound level, to reach out for the radical ground of all social, legal,

cultural, and political order.

Land appropriation, as the founding act behind every true nomos of theearth, appears as the ultimate answer in Schmitts lifelong quest for the

authentic principle of legitimacy beyond mere legality. In fact, we know that

to translate nomos as law, as a mere ought in opposition to the is ofphysis or nature, is seen as already a sign of decadent, positivistic times.Schmitt claims, moreover, that this reductive translation is not supported

by etymology, even though he himself admits to a certain disdain for philo-

logical precision: In its original sense, however, nomos is precisely the fullimmediacy of a legal power not mediated by laws; it is a constitutive his-

torical eventan act oflegitimacy, whereby the legality of a mere law is firstmade meaningful (73/42). As an act of legitimacy, the historical event of

land appropriation is what creates the most radical title and the primary

criterion that determines all subsequent criteria:

Land-appropriation thus is the archetype of a constitutive legal pro-

cess externally (vis vis other peoples) and internally (for the order


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298 Bruno Bosteels

ing of land and property within a country). It creates the most radical

legal title, in the full and comprehensive sense of the term radical title.(47/17)

All subsequent legal relations to the soil, originally divided among the

appropriating tribe or people, and all institutions of the walled city or of

a new colony are determined by this primary criterion. Every ontono-

mous and ontological judgment derives from the land. For this reason,

we will begin with land-appropriation as the primeval act in founding

law. (45/16)

In passages such as these, the act of land appropriation, far from being

a historical event that still somehow could be placed in a specific time andspace, gradually turns into an obscure origin that is receding before our very

own eyes, furrowing its way deeper and deeper into the order of the earth.

I want to restore to the word nomos its energy and majesty, Schmitt com-ments, arguing for the interpretation ofnomos as an Urwort, or primevalword (67/36, 70/39). Schmitt is actually relentless in his predilection for

all words with Ur- as the German prefix for the originary or primeval. Nomoswould be the lasting source of a peoples Urverfassungand Ur-Ma, that is,

its originary constitution and primary measure, with land appropriationbeing the archetype or Ur-Typus of a rechtsbegrndende Ur-Akt, a prime-val act in founding law, which establishes the bodenhafte Urgrund, the ter-restrial fundament, in which all law is rooted and which in turn enables

a seinsgerechte Urteil, meaning not only a judgment but also a primarydivision in accord with the just nature of being (4547/1617). Since the

original meaning of the word nomos has been distorted by latter-day posi-tivism and sophistic legalism, however, perhaps only ancient poetic invoca-

tions can provide us with a hint of its numinous power. Schmitt, we know,

is particularly fond of quoting Heraclitus and Pindar:

Thus, in some form, the constitutive process of a land-appropriation is

found at the beginning [Anfang] of the history of every settled people,every commonwealth, every empire. This is true as well for the begin-

ning of every historical epoch. Not only logically, but also historically,

land-appropriation precedes the order that follows from it. It consti-

tutes the original spatial order [raumhafte Anfangsordnung], the source

[Ursprung] of all further concrete order and all further law. It is thereproductive root in the normative order of history. All further prop-erty relations are derived from this radical title All subsequent


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law and everything promulgated and enacted thereafter as decrees

and commands are nourished, to use Heraclitus word, by this source[Ursprung]. (48/19)

Poetic speech and organic metaphors here serve to bring forth the mys-

terious origin that is said to support all further enactments of order and

law. Language, thus, still knows the secret origin. Language knows it still,

Schmitt quotes a philosopher of language as saying: In this way, language

traces the effective and successive constituting processes and events, even

when men have forgotten them (346). In terms of the organicity of lan-

guage and the doubtful use of etymology, Schmitt is obviously close to Hei-

degger. Even the decisive shift from time to space is consistent with certainlater writings from the author ofBeing and Time. The attempt in Being andTime, section 70, to derive human spatiality from temporality is untenable,Heidegger admits in his lecture Time and Being, after opening up a new

path of thinking that is strikingly similar to Schmitts: Since time as well as

being can only be thought from appropriation as the gifts of appropriation,

the relation of space to appropriation must also be considered in an analo-

gous way.We can admittedly succeed in this only when we have previously

gained insight into the origin of space in the properties peculiar to site and

have thought them adequately.4 Thus, whether the relation between theevent of appropriation, spatiality, and language is put in juridico-historical

or in strictly philosophical terms, after the decisionistic aspects they may

have shared earlier, a similar problematic also brings together some of the

interests behind the later works by Schmitt and Heidegger.

With Schmitts land appropriation, in any case, we find ourselves in the

midst of the search for an origin in the strong metaphysical sense of the Ger-

man word Ursprung, as diagnosed by Michel Foucault in Nietzsche, Gene-

alogy, History: This search is directed to that which was already there,the image of a primordial truth fully adequate to its nature, and it necessi-

tates the removal of every mask to ultimately disclose an original identity.5

The origin always precedes and, at the same time, grounds the particular

occurrences that mark the destiny of its unfolding. However, for Schmitt,

as is also the case for Heidegger, who seems to be the real target of Fou-

caults criticism, this origin is always a lost origin, due to the long history of

its oblivion and decline. What is more, to restore the energy and majesty to

the primeval origin of all concrete order involves an impossible act, whichmay well obscure the very thing that it claims to bring to light: From the

vantage point of an absolute distance free from the restraints of positive


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300 Bruno Bosteels

knowledge, the origin makes possible a field of knowledge whose function

is to recover it, but always in a false recognition due to the excesses of its

own speech. The origin lies at a place of inevitable loss, the point where the

truth of things corresponded to a truthful discourse, the site of a fleeting

articulation that discourse has obscured and finally lost.6

Schmitt will do everything humanly possible to stamp out the traces of

this inevitable misrecognition. The Nomos of the Earthis a book about theloss and return of origin, that is, of the legitimate origin of all subsequent

legal power and positive juridical knowledge. Its fleeting articulation, how-

ever, involves not only a seemingly infinite regress to the primeval origin

but also something that I can describe only as a double operation of sutur-

ing: first, of earth and law, of being and right, or of space and justice intothe unified concept of an authentic geopolitical (or geojuridical) ontology,

and, second, the further suturing of this always-prior ontological order onto

the concrete history of European (or Western Hemispheric) international

law.

Schmitt first of all presupposes an immediate connection between being

and spatiality. Where there is space, there is being, he is fond of quoting

Nietzsche as saying, and he himself asserts with even greater clarity: The

essence of being is to be spatial, position, space and power; it is not a tem-poral succession, it is presence, that is to say, space.7 All being, moreover,

at the same time as it is spatial and concrete, also contains an inner mea-

sure; all being is oriented in accord with an immanent principle of justice

and right: Right is the rightfulness of being that is given at the origin. 8

The earth itself, of course, is the primary site for this powerful suturing of

being, space, and law as right. It is here that we find the threefold root of

law and justice:

In this way, the earth is bound to law in three ways. She contains lawwithin herself, as a reward of labor; she manifests law upon herself, as

fixed boundaries; and she sustains law above herself, as a public sign of

order. Law is bound to the earth and related to the earth. This is what

the poet means when he speaks of the infinitely just earth: justissimatellus. (42/13)

In reality, the words of Heraclitus and Pindar mean only that all sub-

sequent regulations of a written or unwritten kind derive their power

from the inner measure of an original, constitutive act of spatial order-ing. This original act is nomos. (78/47)


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If we accept for a moment to enter this register of a mythopoetic ontology

that once again would highlight the proximity between Schmitt and Heideg-

ger, I am tempted to counter the often repeated quotes from Heraclitus and

Pindar with an expression from Samuel Beckett. For the author ofEnough,the earth is not infinitely just but unjust, or rather ungratefulindif-

ferent to the very question of justice and injustice: Stony ground but not

entirely.9 The earth displays no inner measure, nor is being ordered by an

originary justice. In fact, when the gap between being and law, betweenphysis and nomos, or between is and ought is sutured, what is obliteratedis the notion that justice requires a supplement to the monotony of sheer

being. And this supplement, this but not entirely, which opens a breach

in the totality of being instead of rooting the linkage between being andlaw in the earthy ground, raises the question of a subject that would not be

enthralled by the origin of a silent destiny. To use the words of Alain Badiou

in his reading of Beckett:

What is this breach in the totality of being and self? What is to be

found in this breach that is simultaneously the not-all of the subject

and the grace of a supplement to the monotony of being? This is the

question of the event, of what-comes-to-pass. It is no longer a matter

of asking the question What of being such as it is?, or Can a subjectwho is prey to language rejoin its silent identity? Instead, one asks:

Does something happen? And, more precisely: Is there a name for

the surging up, for an incalculable advent that de-totalizes being and

tears the subject away from the predestination of its own identity? 10

To ask the question of the event and subjectivity in the context of the debate

over sovereignty, we should first of all undo the suture that binds together

earth and law. Otherwise, the much-invoked event will never have been an

incalculable beginning but only a name for the obscure object of a meta-

physical desire for origins.

The second suture is even more violent in smoothing out the arbitrari-

ness of accident in the name of an underlying continuity. I am referring to

the way in which the complex of being, space, and law is related to Euro-

pean history. Let us even ignore the fact that nothing really allows us to

distinguish an authentic act of land appropriation from an inauthentic one.

Surely, though, no geopolitical question can be more timely today. All that

Schmitt has to offer by way of an answer, however, seems to be the suc-cess and lasting force of actual fact, followed by a circular reassertion of


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302 Bruno Bosteels

the premise behind his geopolitical ontology: Not every invasion or tem-

porary occupation is a land appropriation that founds an order. In world

history, there have been many acts of force that have destroyed themselves

quickly. Thus, every seizure of land is not a nomos, although conversely,nomos, understood in our sense of the term, always includes a land-basedorder and orientation (80/48). How long should a brutal use of force last,

one is tempted to ask, before it qualifies as a legitimate act of founding law?

The more important question, however, remains: Who is to say?

A few moments in the book suggest the tenuousness of the suture be-

tween the ontological and the historical. In one symptomatic instance, we

even find that the hesitation surrounding this procedure is displaced onto

a baffling duality in the use of historicity itself: We must not think of land-appropriation as a purely intellectual construct, but must consider it to be

a legal fact [eine rechtsgeschichtliche Tatsache], to be a great historical event[groes historisches Ereignis], even if, historically [in der geschichtlichen Wirk-lichkeit], land-appropriation proceeded rather tumultuously, and, at times,the right to land arose from overflowing migrations of peoples and cam-

paigns of conquest and, at other times, from successful defense of a country

against foreigners (46/17). On one hand, there is the level of appropria-

tion as a great legal-historical event in the ontological sense of the term; onthe other, there are the tumultuous sundry realities of conquests, colonial

wars, and migrations. Schmitt, by linking the two meanings of history

one apparently originary and authentic and the other derivative and almost

secondaryalways seems to rely on the ontological claim of an inner law

of the earth, as if to suggest that this immanent and primeval normativity

was actually destined to become exposed in the history of Western imperi-

alism. In its sheer arbitrariness, this retroactive linkage only highlights the

willfully ignored decision that lies at the heart of any nomos of the earth.Schmitts thinking of the concrete order, rather than offering an alterna-

tive to decisionism and positivism, in fact still relies on the former while

opposing the latter, except that now this reliance is disguised behind the

mask of a distant measure that would have been immanent to Mother Earth

herself.

There is a strong sense in which this construct, which is not purely intel-

lectual so much as ideological, is also closer to myth than it is to history.

Plainly put, what this mytho-metaphysical way of thinking conceals is the

bloody nature of most world-historical inceptions. Historical thinking be-comes mythical when this violent part of nonlaw behind the law is serenely


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In psychoanalytical terms we might say that the logic of the nomos pre-sents a terrorizing superego injunction as if it were the earths own call to

us. A true nomos is nothing but a call to order reduced to its bare root. Itconfronts us with an impersonal superego whose face supposedly coincides

with the earths stony ground. Its primordial injunction is a peremptory

you must that pretends to be derived without mediation from the is of

Mother Earth, as fascinating and ferocious as the native lay of the land. The

superego has a certain rapport to the law, and at the same time it is a sense-

less law, which goes so far as being a misrecognition of the law, Jacques

Lacan says in his first seminar:

The superego is both the law and its destruction. In this, it is the worditself, the laws commandment, insofar as only its root is left.The law is

entirely reduced to something that cannot even be expressed, like the

You must, which is a word deprived of all meaning. It is in this sensethat the superego ends up being identical to the most ravaging and fas-

cinating aspects in the primitive experiences of the subject. It ends up

being identical to what I call the ferocious figure, to the figures that wecan tie up with primitive traumatisms, whatever they be, suffered by

the child.11

What happens when this supralegal injunction hides behind the thought

of concrete order is that the obscene part of nonlaw at the root of all law,

which the ferocity of the superego injunction at least had the sinister virtue

of exposing, is allowed to sink back into the uniform nature of the earths

inner law.

No subject, other than an obscure or reactive figure, can be tied to this

order when the earth itself is said to be sovereign. Following Badious views,

an obscure figure can be defined as one enraptured by the event as a radical

and unattainable origin that from times immemorial precedes and over-

whelms the laborious process of a specific truth in the present. Knowledge

of this origin, which always lies beyond language, is then merely imposed

as myth or religion. Instead of elaborating the events consequences for the

here and now, the result is an occultation of the present under the pressure

of an absolutely prior origin: In fact, the obscure figure is the figure of the

denegation of the present because it approaches the event in a figure of tran-

scendence, as a full subject. 12 The reactive figure, on the other hand, does

not turn the event into a mythical origin but rather negates that there actu-ally was an event in the first place, while confirming the existing status quo.


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304 Bruno Bosteels

Abstractly speaking, nomos is law and property, i.e., the part or share ofgoods. Concretely speaking, nomos is, for example, the chicken in every potthat every peasant living under a good king has on Sunday, the parcel of land

every farmer cultivates as his property, and the car every American worker

has parked in his garage (327). Compared to this chicken and this car, for

sure, one would almost understand the predilection for obscurantism.

In the end, not only is there no real place for the subject, but in a geo-

political ontology there is no space for sovereignty either. To the contrary,

the suturing of being, law, and space is meant to close the gap that con-

stitutes the fundamental site of the sovereign decision. Schmitt started his

lifelong investigation into the principle of legitimacy by positing such a gap.

In The Value of the State and the Meaning of the Individual, for example, heasserts that nothing can overcome the hiatus between abstract norms and

concrete laws: Between the concrete and the abstract, there lies an insuper-

able abyss that cannot be bridged in a progressive passage from one to the

other.13 Only the state, in a sovereign decision, can mediate between the

two and complete the chain between right, the state, and the individual so as

actually to enforce the law. The problem of sovereignty lies precisely in the

connection between law and the enforcement of law, between right and the

realization of right. As Schmitt writes in Political Theology: The connectionof actual power with the legally highest power is the fundamental problemof the concept of sovereignty.14 With the move toward thinking in terms of

concrete order, however, both the strong dualism of the earlier normativist

writings and the decisionist mediation by a sovereign power are somehow

made superfluous, or rather, they are enframed by the supposition of an

all-encompassing objective nomos of the earth. Perhaps the final paradox,then, lies in the fact that any attempt to break with the obscure logic of thenomos, particularly by reinstating the gaps, breaches, and disparities that itsdeployment is meant to suture, is condemned to go back to the start with

the quest for sovereignty. This, too, might be a secret posthumous victory

for Schmitt. However that may be, my only hope is that, at the end of this

circular path, we do not have to find ourselves again in the middle of TheNomos of the Earth.

Notes

1 Carl Schmitt, Ex captivitate salus. Expriences des annes 19451947, ed. Andr Dore-mus (Paris: Vrin, 2003), 161. My reading of Schmitt is deeply influenced by Montserrat

Herrero Lpezs study Elnomos y lo poltico: La filosofa poltica de Carl Schmitt(Pamplona:


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Ediciones Universidad de Navarra, 1997). This study has the virtue of placing The Nomosof the Earthin the broadest possible context of Schmitts entire oeuvre.

2 Jorge Luis Borges, Deutsches requiem, in El Aleph(Madrid: Alianza, 1995), 103.

3 Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Euro-paeum, trans. G. L. Ulmen (New York: Telos, 2003), 48. I will frequently rely on the Ger-

man edition, Der Nomos der Erde im Vlkerrecht des Jus Publicum Europaeum (Cologne:Greven Verlag, 1950), 18. Page numbers in the body of the text, separated by a slash, refer

to the English and the German editions.

4 Martin Heidegger, On Time and Being, trans. Joan Stambaugh (New York: Harper & Row,1972), 23 (translation modified).

5 Michel Foucault, Nietzsche, Genealogy, History, in Language, Counter-memory, Prac-tice: Selected Essays and Interviews, ed. Donald F. Bouchard (Ithaca, NY: Cornell Univer-sity Press, 1977), 142. Whether or not he is justified in doing so for Nietzsche, Foucault

draws a sharp distinction between the metaphysical concept of origin (Ursprung) and thegenealogical concepts of provenance (Herkunft) and inception (Entstehung). Schmitt, aswe saw, uses both Ursprungand Anfang. Herrero Lpez is partly mistaken in this regardwhen she writes that he pursues the Prinzip and not the Anfang, to use the well-knownHegelian distinction (Elnomos y lo poltico, 67; see also 131).

6 Foucault, Nietzsche, Genealogy, History, 143. See also the chapter The Retreat and

Return of the Origin in Foucaults The Order of Things: An Archaeology of the Human Sci-ences (New York: Vintage, 1973), 32835. Reiner Schrmann comments on the differencebetween the original and the originary origin, and on the difference between Anfangand Ursprung, in The Origin Is Said in Many Ways, in Heidegger on Being and Acting:

FromPrinciplestoAnarchy, trans. Christine-Marie Gros (Bloomington: Indiana UniversityPress, 1990), 97151.

7 Schmitt, quoted respectively from Raum und Romand Glossarium, in Herrero Lpez,Elnomos y lo poltico, 5556.

8 Peter Schneider, quoted in Herrero Lpez, 164n133. The German original reads: Recht

ist die im Ursprung gegeben Richtigkeit des Seins.

9 Samuel Beckett, Enough, in The Complete Short Prose, 19291989, ed. S. E. Gontar-ski (New York: Grove, 1995), 54. In French, the text reads: Terre ingrate mais pas

totalement.

10 Alain Badiou, The Writing of the Generic, trans. Bruno Bosteels, in On Beckett, ed. NinaPower and Alberto Toscano (Manchester: Clinamen, 2003), 18.

11 Jacques Lacan, Le sminaire, vol. 1, Les crits techniques de Freud, ed. Jacques-Alain Miller(Paris: Seuil, 1975), 16465.

12 Alain Badiou, Petite thorie (restreinte) du sujet, unpublished seminar from March 19,1997.

13 Carl Schmitt, La valeur de ltat et la signification de lindividu, trans. and ed. SandrineBaume (Geneva: Droz, 2003), 7879.

14 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans.George Schwab (Cambridge, MA: MIT Press, 1985), 18. In German, the text reads:

Die Verbindung von faktisch und rechtlich hchster Macht ist das Grundproblem desSouveranittsbegriffes.


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