José Luis Villacañas Berlanga

The Nomos of the Earth and the Scandal of

Kant: Commentaries on Carl Schmitt’s Book

This is the reality of our spiritual existence. . . .

For we fulfill a function no other method or
form of human social activity can take away
from us. We cannot choose the succession of
regimes and rulers according to our taste, but
we preserve in this unstable situation the fun-
damentals of a rational human being who can-
not dispose with the principles of the law. . . .
There, in the preservation of this indestruc-
tible nucleus of all law against those positions
which would destroy it, inheres the dignity
placed in our hands today, in Europe, more so
than in any previous moment in history and
more so than in any other place on earth.1
This text, written shortly before December
1944 under extreme conditions and as the Third
Reich’s jurist Carl Schmitt took measure of
his life, endeavors to present juridical science
as the ultimate asylum for juridical conscience
in dark times. But under such conditions—in
which Schmitt felt himself to be risking his
life 2—he in fact indulged his preferred vision,
one he had continually massaged ever since an
early commentary on expressionist poet Theodor
Däubler’s Nordlich. This vision, of a Nietzschean

The South Atlantic Quarterly 104:2, Spring 2005.

Copyright © 2005 by Duke University Press.
278 José Luis Villacañas Berlanga

untimely personality made manifest, recuperates above all the figure of the
katechon. To Schmitt, who belongs to the same line as the two great ‘‘detain-
ers’’ of the death of the spirit—Hegel and Friedrich Karl von Savigny—
seemed to correspond to the specific mission of keeping alive the memory
of the jus publicum Europaeum. Boldly, insistently, he claimed to be the last
representative of this law. In Der Nomos der Erde he strengthens this claim
and assumes the corresponding representation.
These various manifestations are all, without doubt, deeply apologetic.
But even in the environment of near desperation in which Schmitt con-
ceived such a justification, in that profoundly Catholic confession Ex Cap-
tivitate Salus, the apology had to base itself in some truth, or at least veri-
similitude. The apparatus of the jurist Schmitt who rendered the history
of the jus publicum, the history of his discipline, is the deployment of this
verisimilitude. Returning from madness, surrounded by desolation, even
the man who had never doubted himself was forced to question the rea-
son behind all that had come to pass. And the reason behind it was this: to
maintain the jus publicum Europaeum. More than merely professional reason
was at stake, indeed. If a central reflection can be gleaned from this bitter
period, as in fact is testified to in the however neutrally titled Glossarium, it
is that the destiny of Rome is the destiny of Raum, of space. A basic thesis
of Der Nomos der Erde, it seems to me, is to affirm the intimate relationship
between the law and space. The essential connection between Rome and
the law was already established by 1925. The trio of powers detaining the
end of spirit, then, the true katechon, consisted of Rome, space, and the law.
The last representative of the jus publicum Europaeum was also the last
defender of a world order decided in Europe, from within European space.
Here Catholicism and Germanness radically and mutually implicate one
another in defense of an old Eurocentrism. Indeed the impulse behind the
struggle against Weimar, Versailles, and Geneva had been the same battle
against the inexorable triumph of the Western Hemisphere, against a new
world order imposed by the United States, against the new doctrine of just
war, and against an open door policy enabling a global commerce that would
eliminate the political. This had been the rational kernel of the German
struggle, manifest even in the sterile and hapless form of Hitler: a Euro-
centric resistance. Europe and her public law was the true subject above the
state, as well as the very condition of possibility for the European states.Was
this a concession to Hans Kelsen and his thesis about the normative superi-
ority of the international law on the national constitution? Doubtless, but
 The Nomos of the Earth and the Scandal of Kant 279

it was a strategic withdrawal that permitted Schmitt a renewed attack, even

if one in which he had to appeal to myth to overcome positivism.
The contradictions of The Nomos of the Earth are, then, far too evident
to forget it was written out of a wounded bitterness and as an instance of
self-affirmation. For the truth was that Europe had not wanted to be just
one more power in the Olympic Pantheon: it had wanted to be the legislator
of the nomos of the entire earth. No one but she had destroyed her central
place. Schmitt’s analysis never fails to register the fact that Europe’s demise
stemmed from her own inability to collaborate in a world order; this does
not diminish Schmitt’s sincerity, but it does say much about his ultimate
lucidity. To some extent Schmitt’s self-critique was never sharp enough to
detect that Eurocentrism had, for quite some time, been an illusion, save
only for a chief of staff for whom the victory at Sedan had proffered the
illusion of omnipotence.
I would suggest that the key to the whole affair lay in the fact that Europe
had generated a worldwide expansion out of its own disorder. Or, in other
words, the enormous exertion of colonization that Europe projected on
the world, from the line of Tordesillas to the Congo Conference, was an
escape valve used to order Europe’s own interior space. The conditions for
steady expansion should have been Europe’s ability to order itself; internal
European disorder was ultimately transferred to its global ventures. It was
Europe’s own shortcomings that, in the wake of two colossal wars, led to
her reduction to a small peninsula of Eurasia. Presenting historical events,
including Nazi domination—a domination that sought its own Reich, its
own empire, a line of nonintervention by foreign powers, defense of its own
law, a European Reich—as merely derivative of an isolationist European
resistance was, then, obviously self-exculpatory.
In sum: Schmitt acted as if he had always stood for the old Bismarckian
doctrine, and as if Hindenburg were his successor. The weakest point of the
book, and of Schmitt’s justifications, lies, to my mind, in just this: that the
doctrine of the Greater German Reich, strictly upheld from Erich Luden-
dorff to Kurt von Schleicher (Schmitt’s true ally in the anteroom of power
until von Schleicher’s death in 1934), was not that of the jus publicum Euro-
paeum. The invasion of Belgium did not respect this law. The creation of
the German Reich as a ‘‘great sphere’’ was not jus publicum Europaeum. Any-
one who endorsed these policies, which from now on would impose no
bridle on Hitler’s will, did not preserve the memory of the old system of
European states, with its respect for neutrality and with its neutralization
280 José Luis Villacañas Berlanga

of war. Schmitt knew this history too well to forget that since its founda-
tion in Westphalia, the peacetime aim of the system of states had been to
establish an equilibrium. But he forgets that the will to equilibrium was the
result of the reality principle’s stubborn imposition on those that aspired
to the hegemony of empire. Similarly, neither the efforts of the last kaiser,
nor those of his admiral Alfred von Tirpitz, his chancellor Bernhard von
Bülow, or his chief of staff Ludendorff were designed to guarantee a Euro-
pean equilibrium. The introduction since Hegel of the absolute sovereignty
of the state, with its will to imperial hegemony, broke with the old and clas-
sical jus publicum founded on the desire for equilibrium. Between the new
and the old jus the idea of sovereignty had, quite simply, changed tout court.
Schmitt arranges his whole apologetic argument such that the old jus publi-
cum might essentially signify a space of nonintervention for non-European
states—Europe’s right to forge its own empire, a European Reich. Europe
for the Europeans, for this we fight, the book seems to say at bottom, occlud-
ing the fact that already by that point Europeans were subjects of the Third
Reich. Schmitt essentially re-presents here that question which was decisive
in his writings from the Nazi period, attention to which is key to under-
standing The Nomos of the Earth: Did the United States not make just such
a move in establishing its theory of the Western Hemisphere? Why should
Germany not have the right to that which the United States had achieved—
undisputed hegemony over a continent? One might object that Schmitt was
here seeking a measure of justice. But what had any of this to do with the
old jus publicum, with the old European equilibrium? It had to do first with
its definitive rupture and eventually with the triumph of empire. And, with
no abdication of colonial presence, it had to do with a new order of the land,
one built on great empires, on vast spaces.
Juridical conscience, when distanced from a historical conscience, be-
comes no less a dogmatic positivism than when it cleaves from real politics.
Critiques of Kelsen ought not consist then solely in signaling the impos-
sibility of separating the law from present politics. For the law cannot be
severed from historical memory, which informs us about past politics. It
is curious that in The Nomos of the Earth Schmitt does not even once cite
Ludwig Dehio. But if anything was derived from Dehio’s major book, Gleich-
gewicht oder Hegemonie, published in 1948, it was that the system of Euro-
pean states, owing to a highly dynamic nature already present in the late-
fifteenth-century system of Italian states, depended on the incorporation of
peripheral countries to forge new equilibria.3 So it was that France and Spain
 The Nomos of the Earth and the Scandal of Kant 281

were introduced into the Italian system, and so too, to restore the equilib-
rium, were introduced Turkey, Prussia, then Russia and, later still, the colo-
nies. The very European system of an equilibrium of states was expansionist
and internationally projected; and for that reason too the Monroe Doctrine
resulted in a defensive posture. The doctrine sought to head off European
efforts to restore a European equilibrium via colonial incursion into the
Americas. A dynamism capable of implicating the entire world in its flux
thus characterized the jus publicum Europaeum, because the European sys-
tem had not sought equilibrium. It had sought hegemony and empire. Equi-
librium was the defense system erected against imperialist hegemonic pre-
tensions, first of the Austrians, and then of the Bourbons, the Bonapartes,
and later the Hohenzollern. Dominance prevailed within the equilibrium,
to be sure, but this had not been the goal per se.
Europe was not able to defend the line of nonintervention by foreign
powers in its territory and at the same time defend its own pervasive inter-
ventionist expansions in the rest of the globe. Europe itself had, for cen-
turies, swallowed up peripheral powers to restore an internal equilibrium
that, time and again, European candidates strove to break. Europe’s inability
to maintain order, her onward rush, generated a politics of expansion. But
its core territory remained unstable because it was anchored in a concept of
sovereignty that once carried to its logical conclusion was soon open to an
absolutist interpretation and, indeed, to the explosion of conflict. For it was
impossible to generate out of this new interpretation an authentic interna-
tional law capable of establishing order and equilibrium—a deficiency that
also meant that Europe’s colonial expansion could not but be disorderly.
The old jus publicum Europaeum served to guarantee the very structure of
disorder, the sovereign state ever on the lookout for hegemonies contested
by alliances in the equilibrium. The jus publicum Europaeum was not con-
sidered a means to produce order, stability, cooperation, peace, or positive
equilibrium.
In a way, the keystone to the system of states was modern ontology’s basic
enunciation: the esse must rest in its being. Such an ontology of the subject
grounded the idea of sovereignty and indeed that of justice when it came to
defining the necessity of war. But Schmitt himself recognized that the very
nature of the state was up for dispute and that therefore so too was the esse’s
radical positioning in its being. Poland realized this to some extent. What
more could be said with respect to sovereignty after Napoléon, the Holy Alli-
ance, the Hundred Thousand Sons of Saint Louis, or Bismarck’s seizure of
282 José Luis Villacañas Berlanga

the Paris Commune? The contradiction in The Nomos of the Earth becomes
palpable at this point: Schmitt must, in a concession to his enemy Kelsen,
cede true sovereignty to the decision of the jus publicum, while at the same
time obscuring the fact that the foundation for his appeals to the jus publi-
cum remained the absolute sovereignty of the state. He has to supersede the
state in favor of great spatial spheres, while relying on a law that effectively
recognized only the absolute subject of the German state. Such a feat was
possible only via a concept of Reich, or empire, which transformed the lim-
ited sovereignty of the classical state into a total and absolute state. Schmitt
had sought refuge behind a faulty shield, and not only because his argu-
ment was contradictory: at base the problem remained that the jus publi-
cum Europaeum as a juridical structure was a mere phantasm, a law never
derived from justice. It was violated as often as was necessary by powers
with aspirations to empire, including the Second Reich, not to mention the
Third. Finally, Schmitt’s entire argument seems cynical. His wager on a
political pluriversum, on the existence of various empires or great spheres, is
a feint to disguise a power that bears all the marks of a will to monotheism,
a power that authorized the total state and total war, total mobilization and
world power sustained by the perfection of techne. Defending a plurality of
empires was a dubious means of presenting what was an unequivocal fight
for world imperialism.
The old jus publicum Europaeum had, in fact, already suffered a radical
critique in the work of Immanuel Kant. Kant not only affirmed that the jus
publicum Europaeum had become the alibi for an arbitrary sovereignty of
states; after the experiences of the Revolution, he understood that the jus
publicum Europaeum needed reform. This meant quite definitively a limi-
tation on the absolute sovereignty of states. One could not maintain at the
same time both such a premise and neutral war. Kant understood the elec-
tive affinities between total war and absolute sovereignty—a link Schmitt
did not wish to accept—and saw that the two were destroying all sense of
international law and, therefore, the jus publicum. Behind the theory of neu-
tral war lay a presumption: certain limits were not to be transgressed. But
the principle of absolute sovereignty accommodated no limit whatsoever.
Kant, then, was the first to affirm that the state ought to be tied to certain
constitutional ends ordering sovereignty. Thus he was the first to recuper-
ate the old doctrine: not potestas absoluta, but potestas ordinata. That state
which did not respect these conditions could be deemed unjust. Only in
this way would the jus publicum be authentic law, jus certum. To wage war
 The Nomos of the Earth and the Scandal of Kant 283

against such a state would then be a just action. The problem of discriminate
war and internal interference, then, was not Woodrow Wilson’s invention.
It was not designed to impose a worldwide democratic empire facilitating
a global market. It was the work of a German philosopher who was able
to see in the old system of European states profound juridical, political,
social, and cultural disorder. When we read Schmitt’s treatment of Kant’s
theory, we recognize the grave injustice Schmitt has to do Kant to discredit
him. For Schmitt, Kant is nothing short of scandalous. Because, for all his
perplexity, Kant is yet the defender of a renewed jus publicum Europaeum,
but one that allows the discrimination of an unjust enemy.4 With Kant’s jus
publicum Europaeum, Germany became the unjust enemy after 1914. This
Kantian entweder oder, realize the jus publicum or be an unjust enemy, a
thesis of discriminate war based on the jus publicum, was unacceptable for
the defender of the state of exception and the decision. For in such cases one
might have seen a jus publicum Europaeum on its way to genuine equilib-
rium, federal cooperation between states, republican limits on sovereignty,
a reasonable case for the principle of intervention as an expansive form of
the homogeneity of civil society, and a democratic constitutional form that
could guarantee governments committed to peaceful means. The unjust
enemy is he who makes impossible such a process. To see Kant as scandal-
ous, however, was above all to refuse to consider an alternative historical
possibility that Europe had known since 1795, and which remained stifled
through an enormous web of complicities.
—Translated by Rachel Price

Notes
1 ‘‘Das ist die Wirklichkeit unserer geistigen Existenz. . . . Denn wir erfüllen eine Aufgabe,
die keine andere Form oder Methode menschlicher Betätigung uns abnhemen kann.Wir
können uns die wechselnden Machthaber und Regime nicht nach unserem Geschmack
aussuchen, aber wir wahren in der wechselnden Situation die Grundlage eines ratio-
nalen Mensch-Seins, das der Prinzipien des Rechts nicht entbehren kann. . . . Darin, dass
wir diesen unzerstorbaren Kern allen Rechts gegenüber allen zersetzenden Setzungen
wahren, liegt die Würde, die in unsere Hund gegeben ist, heute in Europa mehr als zu
irgendeiner anderen Zeit und in irgendeinem anderen Teil der Erde’’ (Carl Schmitt, Die
Lage der Europäischen Rechts-wissenschaft [Tübingen: Internationaler Universitäts-Verlag,
n.d.]. The text was later included in Schmitt’s Verfassungsrechtliche Aufsätze aus den Jahren
1924–1954. Materialen zu einer Verfassungslehre (Berlin: Duncker & Humblot, 1958).
2 This brief work was written in memory of Johann Popitz, financial secretary of state
under Franz von Papen and Prussian minister of finance during the Nazi period. It was to
284 José Luis Villacañas Berlanga

be given him on his seventieth birthday, which he was to celebrate in November of 1944.
But in between, on July 20, 1944, the July Bomb Plot—a failed assassination attempt on
Hitler—occurred. Those who had dedicated works to Popitz for his birthday were com-
promised when he was implicated in the attempt; Popitz was executed. Schmitt dedicated
to Popitz the essay and later the book in which it appeared; Schmitt himself came to
fear for his own safety at that time. See Carlo Galli, Genealogia della politica (Bologna: Il
Mulino, 1996), 706–7.
3 Ludwig Dehio, Gleichgewicht oder Hegemonie: Betrachtungen über ein Grundproblem der
neuren Staatengeschichte (Krefeld: Scherpe, 1948); trans. Charles Fullman as The Precari-
ous Balance: Four Centuries of the European Power Struggle (New York: Knopf, 1962). Dehio,
a historian, a follower of Meinecke and, ultimately, of Ranke, was born in Kant’s home-
land on August 25, 1888, and died in Marburg on November 24, 1963. He is also the
author of Deutschland und die Weltpolitik im 20. Jahrhundert (Munich: Oldenbourg, 1955),
trans. Dieter Pevsner as Germany and World Politics in the Twentieth Century (New York:
Knopf, 1959). In addition, he wrote important essays, including ‘‘Geschichtsbild und
Gegenwart,’’ in Göttinger Universitätzeitung (1946) and ‘‘Um den deutschen Militarismus.
Bemerkungen zu Gerhard Ritters Buch Staatskunst und Kriegshandwerk. Das Problem
des Militarismus in Deutschland,’’ in Historische Zeitschrift, no. 180 (1955): 43–70. Dehio
directed Historische Zeitschrift for several years. For an American author very close to
Dehio’s position, see K. N. Waltz, Theory of International Politics (Reading, MA: Addison-
Wesley, 1979).
4 See Immanuel Kant, Groundwork for the Metaphysics of Morals, ed. Thomas E. Hill Jr. and
Arnulf Zweig, trans. Arnulf Zweig (New York: Oxford University Press, 2002). For a
Spanish-language analysis of this text, see J. L. Villacañas, La nación y la guerra (Murcia:
Res Publica, 1997), particularly the first chapter, dedicated to the evolution of Kantian
theories of international law before and after the French Revolution.