francisco de vitoria, carl schmitt, and originary technicity

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Francisco de Vitoria, Carl Schmitt, and Originary Technicity Orlando BentancorBARNARD COLLEGE

Volume 5 , 2014

DOI: http://dx.doi.org/10.3998/pc.12322227.0005.002 [http://dx.doi.org/10.3998/pc.12322227.0005.002]

[http://creativecommons.org/licenses/by/3.0/]

Carlo Galli as Reader of SchmittIn this paper I take as a point of departure how Schmitt's Eurocentric conception of modernity is based on anotion of nomos that separates Europe from its external frontier and designates the latter as an "empty space," aconcept that is then introjected into Europe as the foundation of geometric global space and the ius publicum

Europaeum distinguishing between "pre-modern" and "properly modern" formulations of this new space in andthrough the differentiation between Vitoria and modern thinkers like Hugo Grotius and Thomas Hobbes. I will begin arguing for the necessity of reading Schmitt through Carlo Gallis interpretation of the notion of nomosunderstood as the cut/decision that emerges from within the irresolvable non-dialectical contradictions of thepre-modern world. I will provide a close reading of Vitoria that will challenge Schmitts reading while associatingGallis notion of nomos as cut/decision with an idea of originary technicity that haunts both the pre-modern andthe modern world. I will conclude by asserting that the nihilistic drive of total technological domination withoutsupersensory or transcendent ends of the pre-modern world is already at work in the ontological frame of

Vitorias discussions on natural law and imperial war that inaugurate the emergence of a colonial space conceivedas available raw matter.

Carlo Galli is the author of the most exhaustive work on Schmitt, the Genealogia della politica: Carl Schmitt e lacrisi del pensiero politico moderno , a 996-page work where he explains concepts such as nomos and the logicof exception through concrete, genealogical, and immanent means rather than through abstract and empty generalizations. As Adam Sitze explains in the introduction to another of Gallis works translated into English,

Political Spaces and Global War , Galli is a non-Schmittian schmittologist who offers a deconstructive genealogy of Schmitt. Sitze rightly notes that: Gallis thought originates in a repetition of the Schmittian ocassio theimmanence of the critic in the crisis that is so completely Schmittian so loyal to the innermost spur of Schmittian thought that it therefore finds itself obliged to be completely non-Schmittian (LIII). [1] [#N1] Insteadof measuring Schmitt against exterior paradigms that inadvertently presuppose his divisions (i.e. treating him asan enemy), Galli offers a genealogical and deconstructive critique of a Schmitt who is himself immanent to thecrisis of the ius publicum europaeum . [2] [#N2] On the one hand, Galli works within Schmitts system, and on theother hand, he shows how Schmitts thought was not immune to the crisis of the ius publicum europaeum . Gallioffers both a radical deconstruction that works within Schmitts premises and a historical reconstruction of hisintellectual milieu, taking his entire corpus to a point of exhaustion, thereby revealing how Schmitts dualisms(land-sea, friend-enemy, law-exception, internal-external war) are inoperative for understanding the political inthe context of contemporary global war. If Schmitts categories cannot explain the global present, then it islegitimate to question their relevance for understanding the past, particularly the colonial past. Instead of usingSchmitts dualism to understand colonial situations, I will take Gallis exhaustion of Schmitts logic as a point of departure in order to call into question the ontological presuppositions behind the constitution of these colonialspaces. [3] [#N3]

Schmitt understands nomos as a fundamental relation between law and space, a process of apportioning spacethat is essential to every historical epoch ( Nomos 78). He defines nomos as a structural convergence or order

and orientation in the cohabitation of peoples on this now scientifically surveyed planet ( Nomos 78). Accordingto Galli, nomos is not an all-encompassing and totalizing concept capable of uniting geography, jurisprudence,

Francisco de Vitoria, Carl Schmitt, and Originary Technicity http://quod.lib.umich.edu/p/pc/12322227.0005.002?view=text...

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and political philosophy (Sitze XLIII). [4] [#N4] Nomos is a critical term for thinking the unthought origin of modernity, capable of awakening the disciplines of geography, jurisprudence, and political philosophy out of their dogmatic slumber. Both the logic of sovereign exception and the notion of the nomos presuppose theabsence of any political Idea the absence, that is to say, of a measure for space rooted in a sense of enduringproportion and undivided harmony (Sitze XLII). In short, Schmitts concept of nomos presupposes the absenceof an ultimate ground, a common standard or unified totality that would serve as an external guarantee and an

ultimate measure for political action. The theory of the nomos unearths the artificial process by means of whichthe absence of a pre-existing political idea becomes actual, thanks to techniques of appropriating and dividingthe Earth (Sitze XLII). Gallis Genealogia demonstrates that the political presupposes a fissure, anabyssal/contingent ungrounded decision. As Sitze explains, Gallis Schmittian nomos is an eventual process, anantagonistic, contradictory and aporetic inception, a cut or decision that gives political form to an otherwiseformless political space (Sitze XLII). For Galli, Schmitts nomos is also antinomian: such an ungrounded decisionto cut and impose order both grounds and undermines this order itself. The concretization of the modern order isinseparable from an ungrounded ground (lack of external guarantee) that undoes and undermines this order andits technical embodiments (Galli, Genealogia 882). The link between the concept of nomos and the concept of exception is the idea of a decisive event that produces their respective dualistic divisions, inside versus outside (inthe case of exception), and external versus internal war (in the case of nomos ). To put it another way, such

divisions depend on a non-juridical origin of modern juridical order, a contingent technique for ordering thechaos produced by the absence of a preexisting ground synonymous with the pre-modern crisis (Sitze XLII).

Understanding nomos and exception in terms of a cut/decision to divide and order the earth can help usunderstand how the techniques for the production of space undermine juridical institutions that have the vaindream of being self-understanding, completely self-determined and self-enclosed (Sitze XLIII). Irreducible toany pre-existing ground, this origin is the tragic kernel of a technique for the production of political forms(Sitze XLIII). Briefly put, at the beginning of modernity there is only crisis, lack, and failure that accompany theinstrumental reason of the State, undoing its own order and orientation. In this work, I reinterpret thisungrounded cut/decision that undermines the legal order and its technical deployments in terms of a violentinstrumentalism at the core of medieval theology that I will call transposition of technique to nature.

This idea of nomos as ungrounded cut/decision that imposes a technical ordering emerging immanently out of abyssal/contingent antagonisms is a precondition for the posterior technological division and appropriation of the earth. It is important to stress that any critical reading of Schmitt in relation to the global present or thecolonial past needs to take one step back and take this precondition seriously, since it is the source of thedualisms that guides Schmitts reading of Francisco de Vitorias attempt to justify the European appropriations of

American land. Any instrumental use of Schmitt in the past needs to go through the detour of asking for thisnon-juridical origin of modern/imperial ordering. As a result, it is necessary to read the centrality of the New

World for the emergence of the ius publicum europaeum as inseparable from the decisive cut that precedes theemergence of the imperial/modern world system.

The modern nomos is a result of the series of crises plaguing the pre-modern political space. Gallisdeconstructive and genealogical concept of nomos as a decisive cut is not a mystical ineffable point beyond

history, but an originary conflict inseparable from the historically situated crises and dissolutions of thequalified space of the medieval world. Galli makes a list of these crises that give place to the moderncut/decision in the chapter titled Premodern Political Spaces and Their Crises. In this chapter he explains thatin the medieval world the notion of justice implies an order of world both rational and natural that isgiven. This just order results not only from the Roman right but also from the Greek legacy: In fact, PlatosTimaeus , which itself informed the high medieval world, furnishes Catholicism with the idea that a complex,organic, and objective Order of Being exists ( Political Spaces 15). This idea of justice contributed to theformalization of a political and juridical culture predominant in the middle and late medieval period. Justice as acorporate and objective Order of Being provides a coherent and harmonious spatial picture, in which allthings, actions, persons, and hierarchically superordinate and subordinate spaces of angelic, ecclesiastic, andpolitical cosmology find a place and reveal themselves to be good (Galli, Political Spaces 15). Galli describes the

space of the res publica christiana as ordered by Being, where politics can do Justice because it issubordinated to Divine Justice ( Political Spaces 15). The good government protects the city and countryside


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through an order guaranteed by a pre-existing rational and natural master (Galli, Political Spaces 15). Thepolitical space is the effect of a vertical imposition of an order from Heaven to Earth (Galli, Political Spaces 15).Qualitative and intrinsically hierarchical representation rationalizes temporal earthly goals in the civil sphere

with the mediation of civil power, and salvation in the religious sphere with the mediation of the Church (Galli, Political Spaces 15). Although Galli does not mention it, Aquinas conceived such an Order of Being as anontological, rational, and natural order that was the ultimate ground for natural law, and Francisco de Vitoriaused this ontological frame in his revival of Thomism in the 16 century. Thus, natural law, which is grounded ina natural, rational, and vertical Order of Being plays a crucial role in Gallis genealogy of the series of crises thatmake possible the decision/cut that inaugurates modernity. Such a naturally ordered space containscontradictions and conflicts that have contributed to the genesis of the modern state and subject (Galli, Political

Spaces 16). My main claim is that the ultimate irreducible contradiction at the core of natural law is thetransposition of technique to the realm of nature and the Order of Being itself.

At the origin of modern politics we find catastrophes and spatial revolutions that reveal the weakness of thepre-modern qualified space and its hierarchies grounded in the Order of Being. The modern spatiality implies aperception of natures lack of spatial and ontological Order of Being (Galli, Political Spaces 24). Thomas More,for instance, reacts primarily to the crisis of Justice as an Order of Being, to the topsy-turvy world thatEngland has become, in which every measure is lost, and no one and nothing remains in their proper place

(Galli, Political Spaces 24). In modernity, space does not contain intrinsic qualities that guarantee such an order;it becomes dequalified, undifferentiated, and empty (Galli, Political Spaces 16). Galli categorically states:Put simply, modern political space is a space of crisis ( Political Spaces 16). The lack of any preexistingguarantee in modern political thought is the condition of possibility of the political geometry of the State thatproduces space predominantly as an undifferentiated quantity, as an abstract and measurable plane, a blank surface that can be apportioned and used at will (Sitze LV, LVI). The unqualified space is an empty andhomogenous passive element available to the gaze of the State and offers no resistance to the States projects of instrumental reason (Sitze LVI). The modern politics of standing reserve that pre-understands everything interms of available raw material, results from the gap left by the crisis of the pre-modern world. Furthermore, it ispossible to affirm that instrumentalism results from the disavowal of this originary conflict.

Galli mentions a series of crises that precede the emergence of the modern solution in the axiomatic geometry of the State and Subject. The first crisis is a cosmological one caused by the Copernican Revolution in which theEarth loses its central place in the universe ( Political Spaces 17). Another crisis is the breakdown of theeconomic spatiality inseparable from the passage from open fields to enclosures and the beginning of capitalist primitive accumulation (Galli, Political Spaces 17). An additional crisis that contributed to theemergence of modernity was the categorical crisis with the birth of nominalism, which contributed to thedismantling of the ground of the idea of Justice, and the qualified space that gives measure to everything, in

which everything takes root (Galli, Political Spaces 17). But the crisis that is most relevant to this paper is thegeographical crisis provoked by the discovery of America (Galli, Political Spaces 17). This crisis made possible theMediterranean centrality with the emergence of the Atlantic economic network, causing Europes center of gravity to shift from south to north. Galli considers this shift to be much more revolutionary than the barbarianinvasions or the Arab, and later Turkish, advances ( Political Spaces 17). Again, for Galli, the most radical of these challenges was the discovery and invention or conquest of America and the Reformation. Both eventsproduced a decisive cut or fissure in the ordered plan of Being, forcing European humanity to reorient thespatiality implicit in its own political and moral thought ( Political Spaces 17). The disorientation brought by thenewness of America made Europe invent the figure of the savage in order to distinguish between the us andthe others, a division that structures so much of European thought (Galli, Political Spaces 17). The figure of the savage is the figure of the one who lives in a space that is empty, which is why it becomes figure of theabsence of spatiality in its qualitative and originary sense (Galli, Political Spaces 17). Modernity and Europeanexpansion is a reconquest of the space made possible by the discovery of the New World, in which spaceacquires a sort of perspectival value (Galli, Political Spaces 18). The emergence of the modern geometry of space is the result of a shift in perspective in which the in itself senseless space of absolute alterity, devoid of qualities, becomes a space for us, a space newly legible, but only from the point of view of Europes new artificial and scientific rationality (Galli, Political Spaces 19). The incorporation of colonial space into modern

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space is an essential part of the history of instrumental rationality that divides and appropriates the earth. In theabsence of a natural and objective Order of Being, the modern State finds that natural law is insufficient forapportioning the earth. Instrumental reason fills the gap left by this dislocation; it invents dispositifs of discipline, governmentality, and security such as the military and police forces (Sitze XXXV). The semblance of the former integrity of Roman Catholic law and natural law is produced through an instrumental reason inconjunction with sovereign decisions that fabricate a public enemy (Sitze XXXV). As one can observe, one of theaspects that make Galli and Schmitt so relevant to colonial studies is their recognition of the colonial origins of modern political space (Sitze LVI). Empty, passive, and undifferentiated space is not merely the product of self-sufficient geometrical abstraction but the result of the space of colonial conquest, the empty space of

America. The conquest of America is the forgotten origin of the self-proclaimed autonomous geometricspatialization of reality, with its divisions between inside and outside. The instrumental reason behindgeometrical ordering is enabled by the transposition of America as the land without peoples into the modernproject. Briefly put, Gallis account of the colonial origins of modernity is the classic retrospective account thatexplains how America served as an image for the pre-historical state of nature. Something left unexplored inGallis genealogy of the nomos is the question of which cut/decision renders America an available empty space

before its appropriation by the modern State and Subject. In order to answer this question it is necessary to focuson Schmitts reading of Francisco de Vitoria.

The conquest and colonization of the New World plays a central role in Schmitts The Nomos of the Earth . [5] [#N5]He devotes the second chapter to explaining the first account of the justification of European land-appropriationas a whole (101). According to Schmitt, Francisco de Vitorias lectures represent the first attempt to pose thequestion of the future legal title to land appropriation within an objective and scholastic frame. I do not pretendto challenge Schmitts reading of Vitoria by means of a more empirical (historiographical or historicist) reading.Instead, my aim is to interpret Vitoria through Gallis cut/decision that grounds modernity in order to betterunderstand the origin of the technical appropriation of the earth and the division between the Eurocentric

juridical system and the constitution of America as an available empty space. In other words, my reading of Vitoria exceeds the dualisms in Schmitts reading of Vitoria by means of Gallis notion of nomos as deed/eventthat emerges out of an immanent crisis or contradictory abyss in the ontological ground of natural law. On theone hand, following Galli, I contend that behind Vitorias attempt to ground the Spanish Empire in natural law,

we find the incapacity of the Order of Being to ground the law. On the other hand, and departing from Galli, Iunderstand that next to the series of crises mentioned by Galli, there is an ontological crisis that is inseparablefrom the transposition of technique to nature at the very core of the political justification of Spanish Empire,

which opens the way to the subsequent triumph of modern spatialization, planetary nihilism, and globaltechnology.

Schmitt as Reader of VitoriaIn the first part of De indis (1539) Vitoria asks: by what right ( ius ) were the barbarians subjected to Spanishrule? ( Political Writings 233). [6] [#N6] The second part of the lecture is dedicated to the rights of the Spanishkings over their Amerindian subjects in temporal and civil matters ( Political Writings 233). In the third

section, Vitoria attempts to define the power that both the king and the church exercise over the Amerindians inspiritual and religious matters ( Political Writings 233). Vitoria begins by explaining that the Spanish crown isin no way compelled to justify anew rights and titles by which its predecessors occupied the territories of theNew World in pacific possession ( Political Writings 233). For this reason, Schmitt affirms that only superficialreadings of Vitoria can interpret his lecture in terms of a defense of the Rousseauian good savage against the evilsof civilization. As Schmitt observes, his view of the conquest is positive, and although he considers the Indiansmorally inferior, ultimately Vitorias view of the conquista is altogether positive . Most significant for him wasthe fait accompli of Christianization ( Nomos 109; emphasis in the original).

Vitoria argues that it would be possible to deny that the natives were true masters (had dominion, orownership) before the arrival of the Spaniards only on four possible grounds, that is, if they are sinners( peccatores ), unbelievers ( infideles ), madmen ( amentes ), or insensate ( insensati ) ( Political Writings 240). Hediscusses whether sinners can be masters in Question 1, Article 2 and concludes that sinners can indeed have


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political space with intrinsic qualities grounded in the Order of Being. Finally, it is important to remember that Vitorias justification is retroactive: when Vitoria delivered his lectures, the Spanish Empire had already beenextracting gold and creating a network of trade and commerce financed by German bankers. As Anthony Anghienotes, while appearing to promote notions of equality and reciprocity between the Indians and the Spanish,

Vitorias scheme must be understood in the context of the realities of the Spanish presence in the Indies (21). [8][#N8] Moreover, gold was already the priority of Columbus, Corts, and Pizarro, and mining was already practiced

in the Caribbean islands. Vitoria provides a justification for events that were taking place before the delivery of this lecture by grounding them after the fact in principles of natural law and the law of nations. In a momenttraversed by all the crises mentioned by Galli, it is easy to see how the basis of the law is shaken by uncertainty,filling this lack of certainty in an instrumentalism that sees America not only as an empty space, but also as asource of precious metals, a smooth space of circulation of commodities, a reservoir of natural resources and raw material.

Schmitt explicitly declares that in Vitoria, the liberum commercium was not the liberal principle of free tradeand free economy in the sense of the open door of the 20 century; it was only an expedient of the pre-technicalage ( Nomos 114). Intellectual inheritors of Vitoria attributed to him different aims because they did not take themissionary mandate and Vitorias theological context seriously. [9] [#N9] By separating Vitoria from his theologicalcontext, they misread him and systematically ignored his intellectual milieu (Schmitt, Nomos 115). For Schmitt,liberal appropriations of Vitoria do not take into consideration the missionary mandate : the liberumcommercium and the ius peregrinandi depend on the potestas of the Pope who ordered the evangelization of theNew World. According to Schmitt, Vitoria is operating within the mandate of the Church, and his concretenessderives from his political position against the reform and the enemies of Christendom, namely, the Jews andthe Saracens. For Schmitt liberal appropriations of Vitoria should not distract the reader from the fact, which is

visible through historiographical objectivity, that the decisive legal force of Vitorias arguments derives from amissionary mandate (Schmitt, Nomos 111). He claims that the abstract generality of Vitorias argumentsshould not prevent the reader from seeing that concrete historical standpoint (Schmitt, Nomos 111). Schmittreminds the reader that the missionary mandate was the position not only of the Pope but also of the CatholicMonarchy ( Nomos 111). The missionary mandate is issued by potestas spiritualis , a mandate that is bothinstitutionally stable and intellectually self-evident (Schmitt, Nomos 119). These rights were not the same as theprinciple of the open door for industrial penetration, but were the means of justifying the declaration of just

war and the land appropriation of the natives, which is the main focus of Schmitt when reading Vitoria ( Nomos120). Although Vitorias right to free commerce is not identical to economic liberalism, commerce and theextraction of the royal fifth appear twice in De indis . Commerce is associated to the right of the Spanish crown toextract tribute in the first title. It appears again when, after providing solid grounds for the subjection of theIndians, he considers the possibility of none of the above-mentioned titles being valid. He categorically affirmsthat even if these titles were not valid, commerce and taxation should not stop. Therefore, even if Spaniards haveno right to invade the barbarians, they could profit from the circulation of commodities, the same circulation that

was already taking place and displacing the circuit of commerce from the Mediterranean to Seville. Moreover, inthe first legal title, America is considered a reservoir of commodities and raw material.

Despite considering the barbarians inferior to the civilized Christians, Vitoria does not consider their beingnon-Christians a cause of just war (Schmitt, Nomos 107). Stated differently, Vitorias justification of theappropriation of the lands of the New World and its annexation to the Old World depends neither on the right of Christians to subdue non-Christians, nor on the rights of civilization to subdue barbarism, but on the idea of ajust war backed up by the missionary mandate of the pope to evangelize the new world (Schmitt, Nomos107). [10] [#N10] Schmitt repeatedly states that Vitorias scholasticism is both neutral and ahistorical and lackspresuppositions ( Nomos 113). Vitoria reaches his conclusion based on general concepts and hypotheticalarguments in order to justify the notion of a just war (Schmitt, Nomos 109). Schmitt proceeds to translate

Vitorias assertion of the unconditional right of the Spaniards to circulate, evangelize, and commerce inhypothetical language: if the barbarians make injury to the Spaniards denying the right to visit the Indies, thenthe Spaniards have the right to repel force with force and declare just war (Schmitt, Nomos 109). The rights of

occupation, intervention, and subjection of the Indigenous peoples derive indirectly from the right to back upcirculation, commerce, and evangelization with just war (Schmitt, Nomos 109).

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Despite praising Vitoria for his neutrality and for his political commitment to the missionary mandate, Schmittthinks that Vitoria is not a fully modern political thinker due to the way he adheres to the notion of a just wargrounded in a just cause . Post-medieval European international law from the sixteenth to the seventeenthcentury displaced the justa causa and instituted the justus hostis , and as a result, only war between equalsovereign states was legitimate. This was enabled by the foreclosure of the moral-theological from juridical-political arguments, as well as the separation of the question of justa causa , grounded in moral arguments andnatural law, from the typically juridical formal question of justus hostis , distinguished from the criminal, i.e.,from becoming the object of punitive action (Schmitt, Nomos 121). Despite conceiving a non-discriminatory concept of war, one that does not discriminate between believers and non-believers, he did not expand hisposition into one of justus hostis , thus remaining within the frame of medieval just war (Schmitt, Nomos 122). [11][#N11] In conclusion, for Schmitt, Vitorias indirect argumentation for land appropriation is not modern because itis grounded in the right to declare just war on those who block the passage to the Indies. Such argumentationimplies that just war is not the war of civilization, progress, and liberalism against barbarians, but a defense of the right to circulate and evangelize mandated by the Church and the Spanish crown. Antony Anghie provides areading of Vitoria diametrically opposed to the medieval framework attributed by Schmitt. According to Anghie

Vitorias doctrine denies that human relations are governed solely by divine law. In addition, Anghie takes note of how Vitoria explicitly turns down the proposition that the Pope exercised universal jurisdiction by virtue of his

divine mission to spread Christianity. According to Anghie, Vitoria displaces divine law and its administrator,the Pope, and replaces it with natural law administered by a secular sovereign (17). Anghies main thesis about

Vitoria is that the emergence of a secular natural law as the basis of the new international law is coeval with hisresolution of the problem of the legal status of the Indian, for it is this problem which initiates Vitorias inquiry(18). I understand that it is important to make some adjustments to this thesis. While it is indisputable that

Vitorias corpus definitely results from the encounter between natural law and the problem of the sovereignty of the Indians, it is important to point out that Vitoria was a Thomist and that he inherited from Aquinas thenatural and rational Order of Being that is the foundation of natural law. And as I will try to demonstrate inthe last section of this article, the fracturing of the natural Order of Being inaugurates the violent act of transposing technique to nature.

My main thesis is that Vitorias notion of a just war in the service of free commerce and evangelization cannot bereduced to the missionary mandate and should be read against the backdrop not only of Aquinass ontologicalground for natural law but also of the crisis of the qualified space of the pre-modern world. For Galli, Vitoriasattempt to justify just war is a reactive formation that tries to cope with the traumatic encounter with the Other.The transposition of the realm of technique to the realm of nature and the natural law itself is an effect of theincapacity to ground the law in self-evident principles. With this purpose in mind, I will look for the foundationfor both practicing commerce and the capacity to repel force with force in Vitorias use of Aquinass ontologicalframework of natural law. First, it is necessary to remember that, in Vitoria, commerce is a fundamental right

because it is grounded in natural law. The ius gentium derives from natural law, which dictates that it is unlawfulto do injustice to strangers. In his lecture De iure belli (1539), Vitoria explains that the only valid reason forconquering the Indians is avenging injuries, based on the natural right to repel force with force ( Political Writings 301). In this lecture, he explains that only a perfect community (an autonomous sovereign with civilpower) can declare war and repel force with force. In his lecture De potestate (1528), Vitoria explains that thesource of validity of any sovereign power (including that of barbarians or non-Christians) is the rational andcausal order of a perfect community exemplified by using the four Aristotelian causes. The final cause of CivilPower is the common good; the efficient cause is God; the material cause is the commonwealth; and the formalcause is the essence of the law imposed from above (Vitoria, Political Writings 4, 10, 11, 18). Above the right of commerce and the right to repel force with force is natural law grounded in natural causality. In other words, theright to make war on the Indians is not only the result of the missionary mandate belonging to the realm of Ecclesiastical power but also a natural right. This natural right, the right to repel force with force, belongs to civilpower, a power that is grounded in natural and rational law, that is, a preexisting order of being with intrinsichierarchical qualities (the ius gentium participates in natural law, which participates in eternal law). Statedotherwise, for Vitoria the ground of the right to repel force with force, the right to defend the right to trade,

belongs to the realm of natural law and its non-juridical (ontological and theological) foundation. An injury made


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to the Spaniards who travel to the Indies to trade and evangelize is an injury made to the natural Order of Beingitself. This means that Vitoria is capable of incorporating the New World into the Old by attributing dominionand obligations to the barbarians, because the natural law is universal, necessary, and unconditional. [12] [#N12] Thelaw is grounded in a qualified space that works as a transcendent, external guarantee that is hierarchical, natural,and rational.

For Galli, the nomos as cut/decision emerges out of the crisis and contradictions of pre-modern qualified space.

Once again, in order to search for the cut/decision that precedes Schmitts dualisms, it is necessary to look for thenon-juridical origin of the law and to ask how the law derives from eternal law as the rational and natural Orderof Being dictated by God. Stated another way, in order to make sense of the right of a certain civil power todeclare war on those who violate natural right, it is necessary to take a look at Vitorias meta-juridical foundationof the law, at the way the law is grounded in a non-juridical, or ontological, foundation. Since Vitoria was aThomist, it is useful to read his commentary on the section of Aquinas Summa Theologica where, when dealing

with eternal law, Vitoria explains how every human law must be based on divine law: Does every law derive fromthe eternal law? Aquinas replies that they do. The proof is that inferior crafts are subordinate to superior ones, as

bridle-making is subordinate to the art of war. God is the supreme legislator (Vitoria, Political Writings 168).The following passage is Vitorias commentary of Aquinass Articulus 3: Whether every law is derived frometernal law in the Summa theologiae Ia IIae 93. There, Aquinas provides an onto-theological foundation of both

natural and positive law:

Law denotes a kind of reason directing acts toward an end, as stated above. Now in all cases wherethere are movers ordered in relation to one another, the power of the second mover must be derivedfrom the power of the first mover, since the second mover does not move except in so far as it ismoved by the first. Hence we see the same thing in all who govern: that the plan of government isderived by secondary governors from the first governor, so that the plan of what is to be done in a State is derived from the king by way of this command to subordinate administrators; and,again, when things are to be made, the plan of what is to be made is derived from the designer tothe lower craftsmen who work with their hands. Since, then, the eternal law is the plan of

government in the Supreme Governor, all plans of government which are in lower governors mustnecessarily be derived from the eternal law. And these plans of lower governors are all other lawsapart from the eternal law. Therefore all laws are derived from the eternal law in so far as they participate in right reason. (106; emphasis added)

In this passage, Aquinas is claiming that sovereign commands are to the subordinate administrators what theplan of the architect is to the inferior craftsmen. Eternal law is to human law what the architect is to the inferiorcraftsmen. When explaining the ultimate origin/end of the law as the ultimate source of domination, Vitoriaassumes that natural causality as subordination (the way the prime mover imparts movement over the secondmover) is like the artificial subordination (the way the architect imposes a design over the inferior craftsmen).

Vitoria and Aquinas fill the gap opened by the absence of a piece of concrete or sensory evidence of the

origin/end of the law with an example derived from artificial subordination. Now, what is puzzling is that thesubordinated element in the hierarchical strata, the craftsmen, serves as a conceptual metaphor fordemonstrating the binding force of the law as such. Let us remember that for Galli, the origin of the modern islocated in the catastrophes and spatial revolutions that reveal the weakness of pre-modern qualified space and itshierarchies grounded in the Order of Being. The lack/loss of ground, the gap in the order of Being, was beingcovered over by the transposition of technique to the theological sphere. Such a transposition allows Vitoria tosee the Indies in terms of a reservoir of natural goods and commodities that can be molded and appropriated by subordinating them to their proper transcendent end.

This transposition engenders contradictions that are inseparable from the crisis eroding the origin/end structureof the natural order itself. Indeed, there is a contradiction plaguing the relation between the subordinating andthe subordinated elements in the vertical structure of the law. On the one hand, natural mastery as a rationaldictate presupposes artificial mastery, and on the other hand, the ultimate Master (Master of all Masters) is


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understood in terms of the subordinated craftsman. The material example appears twice: it is both thesubordinating and the subordinated element. Aquinas compares the Master guarantor of the law with acraftsman in Whether the eternal law is supreme reason existing in God in the Summa theologiae Ia IIae 93:

Just as in every craftsman there pre-exists a rational pattern of the things, which are to be made by his art, so too in every governor there must pre-exist a rational pattern of the order of the things

which are to be done by those subject to his government. And just as the rational pattern of thethings to be made by an art is called the art, or the exemplar of the products of that art, so too therational pattern existing in him who governs the acts of his subjects bears the character of law ...God is the Creator of all things by His wisdom, and He stands in the same relation to them as acraftsman does to the products of his art. (102)

Briefly said, ontological and political subordination and dominion presuppose technical mastery twice : Godhimself stands in front of the world in the same way the craftsman stands in front of the product of his art. Theground of the law, what Galli calls the objective order of Being, the source of mastery and dominion over the

whole world, presupposes the technical mastery of the subordinated craftsman. Vitorias instrumental reason isthe disavowed silent presupposition of metaphysical ontology: in its attempt to derive the law from the externalpreexisting Master Guarantor of sense, metaphysical ontology transposes artificial subordination to naturalsubordination, and then it proceeds to subordinate the manual labor of the craftsman to a superior Master by reintroducing the division between superior and inferior crafts. On the one hand, natural law uses originary technique to give the appearance of necessity to the law. On the other hand, it disavows technique by subordinating the craftsman to the architect in order to hide its own artificial and arbitrary decision. The fissureor contradiction arising from this tension is the result of the distance between the exemplary idea and thematerial example; for Vitoria and Aquinas metaphysical analogical gaze, examples are imperfect copies, sincethey never exactly represent what they are supposed to exemplify. For a critical and materialist gaze, there ismore in the example than in what it exemplifies, in other words, the example always threatens to undermine

what it is supposed to exemplify since it gives body to what the exemplified notion itself represses or is unable tocope with (Zizek, Less than Nothing 364). This excess in the example that undermines and contaminates thepurity of the idea, is an originary technique, the excess of artificiality that permeates natural law, undermining

what it is supposed to ground. The difference between the universal Master and the particular craftsman is alsoredoubled within the latter. Moreover, this difference between the natural and the artificial is internal to theartificial. Natural law is nothing but technique; will to mastery turned against itself. The disavowed originary technique is a fantasy that fills the gap opened by the lack of origin of the law, giving natural law an appearanceof necessity. Originary technicity is the correlate of natural imperial reason. The apparent autonomous andself-enclosed character of the modern State and Subject emerges out of the inner antagonisms of a qualifiedspace that is already contaminated by artificiality. Vitorias imperial agenda depends on the artifact in the same

way the Spanish Empire came to depend on the circulation of silver.

Finally, the universal law of the law is illustrated with an example that transposes one particular technique, the

art of war , to the eternal law, thereby providing technique with the iron necessity of universal law: The proof [that every law derives from eternal law] is that inferior crafts are subordinate to superior ones, as bridle-makingis subordinate to the art of war. God is the supreme legislator (Vitoria, Political Writings 168). In his search forthe metaphysical origin of the just war, Vitoria develops an imperial rationality based on instrumental calculationand military strategy for subjecting, controlling, and defending a territory. It is not surprising that the ultimatecriteria for making war on the Indians is the right of the Spaniards to repel force with force and defend the rightto circulate, trade, and evangelize.

At this point I would like to explicit my own appropriation of Gallis narration in order to make a contribution tothe understanding of the modern/colonial division that emerges in the 16 century. Schmitts reading of Vitoriaas remaining pre-modern reinforces the conceptual division between pre-modern metaphysics and moderntechnicity or instrumental reason. Reinscribing the role of commerce in the justification of the conquest andcolonization of the New World, and the role of originary technicity in the very meta-juridical ground of the law in

th


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Vitoria and Aquinas, helps us to replace the division between modern and pre-modern metaphysics with thetransition from an instrumentalist metaphysics grounded on the Craftsman God to an instrumentalist geometry of the modern Subject/State. Before the technical ordering of the Geometrical Space of the State and theCartesian subject, there is an instrumentalist metaphysics that grounds natural law, commerce, and imperial warin an origin/end structure. This is a disavowed instrumentalism that will undermine not only pre-modernmetaphysics but also the instrumentalism of the Cartesian subject and the State. In other words, the cut/decisionthat inaugurates the technical mastery, division, and appropriation of the earth is preceded by anotheract/decision that transposes artificial mastery to the ground of natural law, commerce, and imperial war. Thistransposition is inseparable from the disavowal of technique, since it not only transposes technique to nature butalso subordinates technique to a superior Master. The inner core of this ontology is the disavowedinstrumentalism, already contaminated by the nihilism that it pretends to combat: the very origins and ends of the Law were phantasmatic projections that result from the forgotten decision/cut that transposes technique tonature and subordinates technique to transcendent ends. The entire structure of Natural law, and the eight validtitles for grounding imperial war, derived their validity and persuasive power from an instrumentalism masked

by the metaphor of the craftsman God and the art of war.

Although the discovery and conquest of America is central to the emergence of the modern ius publicumeuropaeum , Vitorias natural right, the defense of commerce, and the justification of imperial war remain

disfigured in Schmitt because Vitoria and Aquinas instrumentalism remains unthought. [13] [#N13] In other words,it is necessary to supplement Gallis catholic genealogy of the modern/colonial with a critique of instrumentalistmetaphysics. This allows us to show how the inner contradictions of the instrumentalism of the geometrical Stateand the Cartesian subject result from the inner contradictions of Aquinas ontology in the service of Vitoriasimperial agenda of promoting a network of commerce and evangelization subordinated to the Spanish crown.The consequence of forgetting the disavowed originary technicity behind natural law is that this lack of ground

will undermine both the pre-modern world and the modern one. Schmitts reading of Vitoria as pre-modernreinforces the conceptual division between pre-modern metaphysics and modern technicity or instrumentalreason. The excess of technicity disavowed by pre-modern metaphysics will undermine and corrode theinstrumentalism of the modern Subject/State and the apparatuses that regulate conflict inside Europe, displacingit to the empty space beyond its frontiers by means of colonialism, conquest, and genocide. The instrumentalState pretends to regulate internal and external conflicts, but empties out the transcendent ends of thepre-modern world (earthly common good guided by eternal salvation), leaving only production for the sake of production, instrumental means without transcendent ends. As Sitze explains, these transcendent ends become

both necessary and impossible , and the artificial procedures employed by the State undermine the end to whichthey aim (XXXV). Once the transcendent ends disappeared with the catastrophe at the origin of modernity thefracturing of the objective Order of Being instrumentalism was left to its own devices. The means forattaining the end (peace, and taming the inner and external conflict) is plagued by its own contradictions: theattempts to pacify Europe inaugurated the jus publicum europaeum and gave origin to unlimited hostility towardthe external borders of Europe. This is the perfect example of how the modern political order must aim at , butcannot attain , a set of goals (such as earthly peace and reconciliation of antagonistic opposition) inherited fromthe same medieval world it fiercely attacks and criticizes (Sitze XXXVI). With the transference of thetechnological properties from God to the Subject and the State, the transcendent and supersensory endsinherited from the medieval world were lost, and all that was left was production for the sake of production, theinfinite drive of domination for the sake of domination, technological expansion for the sake of technologicalexpansion. [14] [#N14] Nihilistic technological reduction of everything to useful material is the result of an extremeinstrumentalism that empties the supersensory world of transcendent ends and undermines its own sense andpurpose. As a result, nihilism plagued Aquinas and Vitoria before provoking the series of contradictions that willcompletely explode with the age of globalization (Galli, Political Spaces 57). Originary technicity, the disavowedinstrumentalism of natural law and imperial war, not only naturalized a conception of America as a reservoir of precious metals and natural resources, but also contained the inner contradictions that would also undermine themodern instrumentalism of the Subject and the State. Shifting perspectives from Gallis reading of the nomos asabyssal act, to an examination of an originary technicity that is inseparable from colonial spaces inception, helpsus reconsider the nihilistic technological drive that underlies the divisions at the heart of the appropriation and


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division of an earth-contaminating modernity that is exploding into a new epoch of global war, situated now beyond Schmitts genealogy of the ius publicum europaeum.

NotesSitze also writes that the more we engage in a serious reading of Schmitts writings, and the more loyal weremain to the inner core of his thought in our interpretations, the more we come to see how fruitless his

categories are in a context that is radically different from the one that made such categories possible: The useof Schmittian categories to interpret the global age not only betrays what was most alive in Schmitts thought;it also allows us to comfort ourselves with the reassuring knowledge that contemporary crisis will so resemblethose of modernity that the critique of the latter will retain purchase on the former as well. The challenge of the latter will retain purchase on the former as well. The challenge of Carlo Galli is to read Carl Schmitt socompletely, so carefully, and so loyally, that we therefore close the book on him, turning instead to face a set of crises about which Schmitt has, precisely, nothing to say (LIV). [#N1-ptr1]

1.

For some works on Schmitt see, McCormick, Carl Schmitts Critique of Liberalism: Against Politics asTechnology ; Moreiras, A God without Sovereignty. Political Jouissance. Passive Decision; Marder,Groundless Existence: The Political Ontology of Carl Schmitt . [#N2-ptr1]

2.

In sum, Schmitts thought is extremely relevant to colonial studies on the condition that we critically examinehis literal reading of Vitoria in the Nomos in order to reach the inner core of his logic. This inner core is theidea of the decisive cut as modern and Eurocentric ordering that emerges out of the crisis and catastrophes of

the pre-modern world. Going through Schmitts somewhat problematic reading of Vitoria is a way of thinkingthe unthought element in his idea of technical ordering, which is the instrumentalist presupposition behindthe ontological foundations of Iberian imperial reason. [#N3-ptr1]

3.

Following Galli, Sitze claims that it is necessary to avoid non-Schmittian understandings of Schmitts concepts(XLII). For instance, he maintains that it is necessary to avoid understanding nomos as a new anddiscontinuous phase of a Schmitt concerned with international law as opposed to domestic law in a postwarcontext, while also circumventing an idea of nomos that confuses it with an abstract name for any especially

broad conjunction of space and law (XLII). The idea of nomos has been misread as a methodological deviceor as a totalizing concept, a broad conjunction of space and law somewhat akin the episteme in the early

work of Michel Foucault or the mode of production in Marxist thought (XLII). [#N4-ptr1]

4.

The entire second part of the book discusses the problem of land appropriation of the New World.[#N5-ptr1]

5.

See also Adorno; Anghie; Covell; Fernndez-Santamara; Galli, Introduzione; Pagden. [#N6-ptr1]6.These titles have been discussed extensively by Pagden and Adorno. [#N7-ptr1]7.I agree with Anthony Anghie when he writes: Seen in this way, Vitorias scheme finally endorses andlegitimizes endless Spanish incursions into Indian society. Vitorias apparently innocuous enunciation of aright to travel and sojourn extends finally to the creation of a comprehensive, indeed inescapable system of norms which are inevitably violated by the Indians. For example, Vitoria asserts that to keep certain peopleout of the city or province as being enemies, or to expel them when already there, are acts of war. Thus any Indian attempt to resist Spanish penetration would amount to an act of war; which would justify Spanishretaliation. Each encounter between the Spanish and the Indians therefore entitles the Spanish to defendthemselves against Indian aggression and, in so doing, continuously expand Spanish territory, as discussed

below (21-22). [#N8-ptr1]

8.

Schmitt analyzes three examples: Hugo Grotius, Ernst Nys, and James Brown Scott rejecting all of theirreadings as liberal appropriations that misunderstand the theological dimension of Vitoria. [#N9-ptr1]

9.

This is only partly true, since Vitoria oscillates between attributing the label of serfs by nature to the so-calledbarbarians as it is evident in his last possible title for subjecting the natives of the New World.[#N10-ptr1]

0.

In his introduction to an Italian translation of Vitorias lecture De iure belli , Galli explains some of Schmittsoptions when reading Vitoria. First, Vitorias notion of just cause is entirely different from full modern

warfare, which recognizes only the war between European states (Introduzione XXXIV). Schmitt reads Vitoria through the lenses of his central distinction between just war and just enemy. Second, Schmitt wants torescue Vitoria from the abstract universalism intrinsic to liberal misappropriations (Galli, IntroduzioneXXXV). This decision is based on Schmitts political struggle against a universalism that disavows its ownintrinsic conflicts and antagonisms, namely the friend-enemy division. Moreover, Schmitts decision to explainthe right to free commerce as grounded exclusively in the missionary mandate derives from his antagonismagainst liberalism. Thus, Schmitts reading is an interested reading that poses as historiographical objectivity (Galli, Introduzione XXXV). Briefly put, in one and the same move, Schmitt underestimates the importanceof the first title by rejecting the liberal misappropriations of Vitoria, while at the same time he relegates just

war to a pre-modern sphere. According to Galli, Schmitt sees Vitorias political space as belonging to the res

1.


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publica christiana as incorporating even non-Christians by including them in the notion of Justice andcommon good (Introduzione XLII). Galli asserts that Schmitt is right in suggesting that Vitoriasuniversalism does not coincide with the modern one, but he does not think that Vitoria is pre-modern. Vitoriaextends the news of the discovery to a traditional paradigm of justice, the order of rational being, andtherefore modifies and transforms it into a model of regulation of international relations susceptible to futuredevelopments (Galli, Introduzione XVI). Unlike modern thinkers, Vitoria develops a notion of peace thatrests on the assumption of justice as objective foundation of politics, taking for granted the absence of contradictions between the particular and the universal, between statehood and peace (Galli, IntroduzioneL). Despite being concrete, which for Schmitt means inserted in the political logic of his time, Vitorias just

war subordinates the structural causes of war to the purposes of peace, concealing the complexity of the social,economic and political conditions of war (Galli, Introduzione LIV). [#N11-ptr1]See Anghie 17-23. [#N12-ptr1]2.The way Schmitt downplays the role of trade in Vitoria has a deep connection with his overlooking of Vitoriaand Aquinas instrumentalism. He subsumes trade and circulation under the missionary mandate that belongsto the sphere of divine law because he does not pay enough attention to the very ground of natural law itself.[#N13-ptr1]

3.

The nihilistic drive to endless technological domination is an essential part of Heideggers critique of technological reduction of everything to a standing reserve, but is also similar to Karl Marxs insight about thefunctioning of capital as circulation for the sake of circulation that disguises itself as efficient satisfaction of needs. For an exploration of the relations between Iberian imperial reason, nihilism, and technology as

reduction of being to standing reserve, see Bentancor. [#N14-ptr1]

4.

Works Cited Adorno, Rolena. The Polemics of Possession in Spanish American Narrative . New Haven: Yale UP, 2007. Print.

Anghie, Antony. Imperialism, Sovereignty, and the Making of International Law . Cambridge: Cambridge UP,

2005. Print.

Aquinas, Thomas. Political Writings . Ed. R W. Dyson. Cambridge: Cambridge UP, 2002. Print.

Bentancor, Orlando. Decolonizing Material Culture: Colonialism and Will to Technology. Hofstra Hispanic

Review . 3.1 (2006): 54-64. Print.

Bradley, Arthur. Originary Technicity: The Theory of Technology from Marx to Derrida . Hampshire: Palgrave

Macmillan, 2011. Print.

Covell, Charles. The Law of Nations in Political Thought: A Critical Survey from Vitoria to Hegel . Hampshire:

Palgrave Macmillan, 2009. Print. http://dx.doi.org/10.1057/9780230244450 [http://dx.doi.org/10.1057

/9780230244450]

Fernndez-Santamara, J. A. The State, War and Peace: Spanish Political Thought in the Renaissance,

1516-1559 . Cambridge: Cambridge UP, 1977. Print. http://dx.doi.org/10.1017/CBO9780511896804

[http://dx.doi.org/10.1017/CBO9780511896804]

Galli, Carlo. Genealogia della politica: Carl Schmitt e la crisi del pensiero politico moderno . Bologna: Il mulino,1996. Print.

Galli, Carlo. Political Spaces and Global War . Ed. Adam Sitze, Tr. Elisabeth Fay. Minneapolis: U of Minnesota P,

2010. Print.

-. Introduzione. Francisco de Vitoria. De Iure Belli . Roma: Laterza, 2005. V-LIX. Print.

Hamilton, Bernice. Political Thought in Sixteenth-Century Spain . Oxford: Clarendon Press, 1963. Print.

Heidegger, Martin. The Question Concerning Technology, and Other Essays . New York: Harper & Row, 1977.

Print.

Loscerbo, John. Being and Technology: A Study in the Philosophy of Martin Heidegger . The Hague: Nijhoff,


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1981. Print.

Marder, Michael. Groundless Existence: The Political Ontology of Carl Schmitt . New York: Continuum, 2010.

Print.

McCormick, John P. Carl Schmitts Critique of Liberalism: Against Politics As Technology . Cambridge:

Cambridge UP, 1997. Print.

Moreiras, Alberto. A God Without Sovereignty. Political Jouissance . The Passive Decision. CR: The New

Centennial Review 4.3 (2004): 71-108. Print. http://dx.doi.org/10.1353/ncr.2005.0023 [http://dx.doi.org

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Pagden, Anthony. The Fall of Natural Man: The American Indian and the Origins of Comparative Ethnology .

Cambridge: Cambridge UP, 1982. Print.

Scott, James B. The Spanish Origin of International Law . Oxford: Clarendon Press, 1934. Print.

Sitze, Adam. Editors Introduction. Carlo Galli Political Spaces and Global War . Minneapolis: U of Minnesota

P, 2010. XI-LXXXV. Print.

Thomson, Iain D. Heidegger on Ontotheology: Technology and the Politics of Education . Cambridge:Cambridge UP, 2005. Print.

Schmitt, Carl. The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. New York:

Telos Press, 2003. Print.

-. Political Theology: Four Chapters on the Concept of Sovereignty . Cambridge: MIT P, 1985. Print.

-. Theory of the Partisan: Intermediate Commentary on the Concept of the Political . New York: Telos Press

Pub, 2007. Print.

Vitoria, Francisco. De Iure Belli . Ed. Carlo Galli. Roma: Laterza, 2005. Print.

-. Political Writings . Ed. Anthony Pagden and Jeremy Lawrance. Cambridge: Cambridge UP, 1991. Print.

Hosted by Michigan Publishing , a division of the University of Michigan Library .For more information please contact [email protected] .

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