Carl Schmitt’s Critique of Kant

I. The Winds of War—For Whom Do They Blow?

In 1922, Carl Schmitt published Political Theology: Four Chapters on the Concept of Sovereignty. ¹ Reissued in 1934 with a new Preface by Schmitt, this text, along with The Concept of the Political (1932) and The Crisis of Parliamentary Democracy (1923), ² established Schmitt as one of the most trenchant critics of the liberal democratic project. Schmitt documented not only the sociological transformation of liberal parliamentarianism into the rule of special interest groups and committees that eventually undermined parliaments from functioning as deliberative bodies. He also drove home the rationalistic fallacies of liberalism until its “limit concepts”—die Grenzbegriffe—were uncovered. These limit concepts, in Schmitt’s view, constituted the secret and unthought foundations on which the structure of the modern state rested. Sovereignty is one such limit concept; government by discussion, and the assumption that all opinions will eventually converge through deliberation upon a rational outcome, are among the other unquestioned presuppositions of liberalism.

Schmitt’s sociological and philosophical critiques have proven formidable and have inspired thinkers on the right as well as the left. From Otto Kirchheimer and Walter Benjamin to Hans Morgenthau and Leo Strauss, to Chantal Mouffe and Ernesto Laclau ³ , as well as many others in our times, Schmitt is the éminence grise to whom one turns when the liberal–democratic project is in deep crisis. There is no need here to document the extensive Schmitt renaissance that has flourished in Europe as well as the United States in the past decades. Instead, I would like to briefly recall some theses of Schmitt’s Political Theology in order to demarcate the continuities as well as discontinuities between contemporary concerns that may be gathered under “political theology” and Schmitt’s own preoccupations.

There are at least three interrelated and not always clearly distinguished theses in Schmitt’s Political Theology. First is a thesis in the history of ideas, sometimes referred to by Schmitt as the “sociology of concepts” as well (PT, 45), and best expressed through the following claim: “All significant concepts of the modern theory of the state are secularized theological concepts not only because of their historical development—in which they were transferred from theology to the theory of the state, whereby, for example, the omnipotent God became the omnipotent lawgiver” (PT, 36). In the second place, Schmitt explores legal hermeneutics, that is, the dialectic of the general rule and the particular case, the law and the instances to which it applies. In the third place, Schmitt develops a thesis about the construction and prerogatives of sovereignty as the seat of legitimacy in the modern state. What resonates most in contemporary debates about political theology are neither the first nor the second of Schmitt’s theses, but rather the third, that is, his theory of sovereignty as the exception. It is as if the political Zeitgeist of our times has given new life to the famous opening lines of Schmitt’s Political Theology, “Sovereign is he who decides on the exception” (PT, 5).

The concept of sovereignty has an internal as well as an external dimension: considered as a norm in domestic law, it refers to the highest source of authority in a legal regime, and significant aspects of Schmitt’s work are dedicated to analyzing the constitutional dilemmas of legality and legitimacy that surround sovereignty. ⁴

Sovereignty also has an international dimension: after the Treaty of Westphalia (1648) that concluded Europe’s wars of religion, it means that a unitary political entity, whether a monarchy or a democracy, is recognized by other political units as an equal and interacts with them on the basis of certain norms, laws and treaties. In the post–September 11th, 2001 world, many scholars have turned to this dimension of Schmitt’s writings on external sovereignty and international law. ⁵ While some see in this new twenty-first century the spread and emergence of cosmopolitan norms, others argue that it is the bid for power of the American imperium or of the sole rogue superpower that drives the international conflicts of our age.

Thus, in an article entitled “A Just War? Or Just a War?: Schmitt, Habermas and the Cosmopolitan Orthodoxy,” William Rasch concluded with these astonishing claims:

Call it dialectic of enlightenment, if you like, or just perverse irony, but the resurrected spirit of that old “Catholic,” Carl Schmitt, is certainly one of the Heines [meaning Heinrich Heine—SB] of the present who fight the completion of our contemporary Geistes Bastille, the monolithic cosmopolitan law envisaged by Habermas. . . . On one hand, in the name of perpetual peace, Habermas advocated the perpetual war of “gentle compulsion” and continuous police actions; on the other hand, in the name of belligerent, homogenous [sic SB] particularity, Schmitt urges on us the universal value and possibility of politics as both affirmation and opposition. Thus, Schmitt, the nationalist, might also be Schmitt, the international multiculturalist, who offers those who “obstinately” wish to resist the “West” a theoretical foothold. ⁶ (first emphasis in original; second emphasis added)

Published in 2000, Rasch’s article preceded the attacks on the World Trade Center and the Pentagon of September 11th; the Afghan War; the war on Iraq; Abu Ghraib, Guantanamo and much else. While Rasch’s judgment that Schmitt could be named one of the “Heines of the moment,” is certainly an instance of “perverse irony” (Rasch, 1683), nevertheless, he was correct in sniffing the “odor of the times,” which would come to identify cosmopolitanism with global imperialism and, in particular, with the project of U.S. world hegemony. Carl Schmitt has since then, and even earlier, become the indispensable reference point for all those who want to unveil the hypocrisies, inadequacies, and maybe even bankruptcy, of liberal democratic politics, at home and abroad. ⁷

My goal in this article is to go to the root of Carl Schmitt’s critique of liberal international law as being a ruse to hide hegemonic aspirations by considering his neglected discussion of Kant’s concept of “just war” in The Nomos of the Earth in the International Law of Jus Publicum Europaeum. ⁸ Contrary to what Rasch asserts, we will see that Schmitt is no innocent defender of multiculturalism resisting the Western hegemon. He is an authoritarian state theorist who wishes war to remain the sole prerogative of sovereign nation-states and who fights against international law restrictions on aggressive war by denouncing the League of Nations, the Kellogg–Briand pact and Woodrow Wilson for “criminalizing war.”

After examining the multiple layers at which Schmitt’s argument in his Nomos of the Earth proceeds (II and III), I focus on a close reading of his critique of Kant’s concept of the “unjust enemy” (hostis injustus) in the Metaphysical Elements of Justice (1799). Schmitt is not wrong in claiming that Kant’s discussion presents a profound moral argument to limit the jus in bello (right in war) but that it also contains certain slippages and ambiguities that may justify humanitarian interventions such as to enable the building of a liberal international order (IV). My approach is both critical–interpretive and reconstructive, in that I wish to engage Schmitt’s reading of Kant to draw out broader issues pertaining to international law and sovereignty.

In conclusion (V), I turn to contemporary discussions of these issues, also raging in the U.S. Supreme Court, and argue that Schmitt, as well as left critics of U.S. hegemony, misconstrue the relation between international law and democratic sovereignty as if this were a model of top–down domination. As conflictual as the relationship between international norms and democratic sovereignty can be, it needs to be interpreted as one of mediations and not one of domination.

II. Schmitt’s Nomos of the Earth

The Nomos of the Earth is a late work of Schmitt’s, first published in 1950, although some of the articles concerning these themes had appeared throughout the 1940s. ⁹ It is a magisterial work that establishes Schmitt’s significance as an expert of international law. The text moves at three levels at once, which we may characterize as the ontological, the real-political, and the personal. At the ontological level, Schmitt is establishing a link between Ordnung and Ortung (“order” and “orientation”), between the law as nomos and the earth. Nomos is broader in meaning than just law and is usually rendered as “the commonality of the polis,” the “content of the constitution, laws and customs.” ¹⁰ In terms that cannot fail to remind one of Heidegger, Schmitt writes of “die elementaren Ordnungen ihres terrestrischen Daseins” (the elementary orders of man’s terrestrial being), and he adds, “We seek to understand the normative order of the earth” (Nomos, 6; 39). The German, however, speaks of a “Sinnreich der Erde,” possibly better translated as the “domain of meaning” of the earth.

These ontological theses about law as nomos, the earth and its meaning, order and orientation have their sources in an old and ongoing debate that Schmitt was involved in with neo-Kantians such as Hans Kelsen. ¹¹ As Raphael Gross explains in an illuminating article, Schmitt adopted the concept of nomos, “inherited from the political theology of German Protestantism,” such as advocated by Wilhelm Stapel, who in turn had developed this concept as part of his theological confrontation with Judaism. ¹² What is the source of the authority of law: human will or reason? Or some more fundamental order that precedes human acts of law-giving? Does the law express principles of human justice, or is the law grounded in some other order that precedes but nevertheless constrains human justice? Schmitt is not a natural-rights theorist, and he cannot respond to Kelsenian positivism by invoking natural law; rather, he appeals to an “order of the earth,” and of “place” (Raum), as opposed to positivist understandings of law that see law as covering both earth and sea and as emerging whenever the “will of one must be brought under a law of freedom to coexist with the will of the other,” to use a Kantian locution. Instead, for him the German concept of “law,” Gesetz, is deeply implicated in the theological opposition of “Jewish law” and “Christian grace.” (Nomos, 39; 70). ¹³

At the level of Realpolitik, the second half of Schmitt’s work engages in a ruthless, but not always unjustified, polemic against Anglo-Saxon and particularly American attempts to develop a new law of nations. The modern state formation in the West begins with the territorialization of space. The enclosure of a particular portion of the earth and its demarcation from others through the creation of protected boundaries—and the presumption that all that lies within these boundaries, whether animate or inanimate, belongs under the dominion of the sovereign—is central to the territorially bounded system of states in Western modernity. In this Westphalian model, territorial integrity and a unified jurisdictional authority are two sides of the same coin; protecting territorial integrity is the obverse side of the power of the state to assert its jurisdictional authority.

The modern absolutist states of western Europe were governed by the “Jus Publicum Europaeum” as their international law. However, this model was unstable from its inception, or in Stephen Krasner’s famous phrase, “sovereignty is hypocrisy.” ¹⁴ The discovery of the Americas in the fifteenth century, the imperialist ventures into India and China, the struggle for domination over the Indian Ocean and the nineteenth-century colonization of Africa destroyed this form of state sovereignty and international law by chipping away at its peripheries. ¹⁵ Not only the West’s confrontation with other continents, but the question whether the non-Christian Ottoman Empire belonged to the “Jus Publicum Europaeum,” showed the limitations of this order. Though Schmitt himself is not far from idealizing this Westphalian moment in the evolution of “the law of the earth,” his own account documents its inherent limits and eventual dissolution. The deterritorialization of modern states goes hand in hand with their transformation from early bourgeois republics into European empires, be they those of England, France, Spain, Portugal, Belgium, the Netherlands, or Italy. ¹⁶

Accompanying these developments have been attempts to formulate a new law of nations to succeed the “Jus Publicum Europaeum.” Foremost among these were the failed League of Nations’ efforts to devise a new legal “spatial order” between 1919 and 1939 (Nomos, 225; 257–58). For Schmitt, the decisive problem in this period—even more than that of the colonies—is the relationship of the United States to the League. As he puts it quite bitingly,

Once the priority of the Monroe doctrine—the traditional principle of Western Hemisphere isolation, with its wide-ranging interpretations—was asserted in Geneva, the League abandoned any serious attempt to solve the most important problem, namely the relation between Europe and the Western Hemisphere. Of course, the practical interpretation of the ambiguous Monroe Doctrine—its application in concrete cases, its determination of war and peace, its consequences for the question of inter-allied debts and problem of reparations—was left solely to the United States. . . . Whereas the Monroe doctrine forbade any League influence in American affairs, the League’s role in European affairs . . . was codetermined by these American member states. (Nomos, 224; 254–55)

In a turn of phrase that could have flown from Jacques Derrida’s pen, Schmitt concludes: “The United States was, thus, formally and decisively not present in Geneva. But they were, as in all other matters, and hardly ineffectively and very intensely present as well. There thus resulted an odd combination of official absence and effective presence, which defined the relationship of America to the Geneva Convention and to Europe” (Nomos, 224–25, my emphasis; I used my own translation here since the English version has been somewhat abbreviated).

Schmitt’s diagnosis of American exceptionalism—its absent presence—with respect to the League of Nations, and to international organizations and international law in general, is quite accurate, and in the period between the Gulf War of 1993 and the Iraq War of 2003 has found fresh and receptive audiences. It is this ambivalent relationship of American understandings of sovereignty to a new law of nations that is at the source of the contemporary concerns of Supreme Court Justices, vis-à-vis international law. ¹⁷ Indeed, the United States remains an absent presence, even today, from the International Criminal Court.

While I find Schmitt’s commentary on the historical, geo-political, and legal gyrations and inconsistencies of the United States as a world power unobjectionable, we must also be clear that Schmitt critiques American behavior not to offer a new law of nations but rather to undermine it altogether by showing it to be based on hypocrisies. American hegemony may be economically and militarily irresistible but it is by no means juridically justified in his eyes.

Schmitt’s personal interest in this matter—and this is the third level mentioned above—is to destroy the legitimacy of the emergent world order between 1919 and 1939, and in particular the criminalization of war through the doctrine that wars of aggression are legal crimes. With this argument, Schmitt is not only trying to save the honor of Kaiser Wilhelm II who was rendered a war criminal by the Allies as a result of the Versailles Treaty of 1919, but he is also trying to save his own honor, since he would refuse to cooperate with the investigation of the Denazification Commission and would have his own right to teach (venia legendi) revoked by the Allies after World War II. ¹⁸ If the legal order that emerged in this period under the influence of the League of Nations and the criminalization of aggressive war was based upon juridical, moral, and geo-political hypocrisies and contradictions, then how could the Nüremberg legal order that resulted from the Third Reich’s defeat be anything but a continuation of this bankrupt order? It is in this context that Schmitt’s attacks against the “discriminating concept of war,” and his plea to restore the “non-discriminating concept of war” need to be evaluated, although the preoccupation with these themes derive from his deeply seated theoretical concerns and do not reflect motives of self-justification alone.

III. The End of the Pre-Modern Doctrine of Just War

Schmitt’s eulogy to the “Jus Publicum Europaeum” in the first part of Nomos emphasizes that this system neutralizes war by moving away from the medieval notion of “just war.” In this transformation the enemy is no longer viewed as “inimicus” but as “justi hostes” (categories which also return in Schmitt’s concept of the “political”). ¹⁹ The enemy is not one with whom one has religious, moral or existential conflicts—an inimicus—but one with whom it is possible to have potential or actual conflicts of interests.

Schmitt, however, is never consistent in his attempts to distinguish hostis from inimicus, the public from the private enemy, because of his contention that the enemy is the one with whom one has the most “intense” kind of conflict. In the final analysis, this distinction leads back to his racially grounded theory of the people as a Volksgemeinschaft. As Karl Löwith, one of the earliest and most penetrating observers of Carl Schmitt, notes:

On the one hand he must seize upon a substantiality which no longer befits his own historical situation and from which enmity derives substantive content; on the other hand, as a modern, postromantic human who thinks far too occasionally to be able to believe in divinely willed and naturally given distinctions, he must again relativize the substantial presuppositions and shift his whole fundamental distinction into a formal existentiality. As a consequence, his decisive formulations of the friend-enemy distinction shift indecisively back and forth between a substantial and an occasional understanding of enmity and friendship, so that we do not know whether what is at stake here is those of like kind and those of different kind, or whether instead what is at stake is simply those who—either with one or against one—are occasionally allied. Upon the shifting ground of this ambiguity Schmitt builds up his concept of the political, whose essential feature is no longer life in the polis but instead is simply the jus belli. ²⁰

On a more positive level, Schmitt’s reconstruction of the eventual decline of “just war,” used by Christian theologians in their encounter with the New World, is prescient (Nomos, 69ff.; 102ff.), and anticipates some of the best work done by contemporary scholars of post-colonial theory. ²¹ But matters are never simple with Schmitt, since he not only intends to criticize the medieval doctrine of just war but to denounce altogether the discriminating concept of war that would outlaw wars of aggression.

“Based on relations between states,” writes Schmitt,

post-medieval European international law from the 16th to the 20th century sought to repress the justa causa. The formal reference point for determining just war no longer was the Church’s authority in international law, but rather the equal sovereignty of states. Instead of justa causa, international law among states was based on justus hostis. Any war between states, between equal sovereigns, was legitimate. Given this juridical formalization, a rationalization and humanization—a bracketing—of war was achieved for 200 years. (Nomos, 91; 121)

This concept of war is based upon the separation of moral–theological from juridical–political premises, and the separation “of justa causa, grounded in moral arguments and natural law, from the typically juridical–formal question of justus hostis, distinguished from the criminal, i.e. from becoming the object of punitive action” (Nomos, 91; 121, emphasis in original). Schmitt also names this the “neutralized” concept of war: “All inter-state wars upon European soil, which are carried out through the militarily organized armies of states recognized by European law of nations (Völkerrecht), are just in the sense of the European law of nations of this inter-statal period” (Nomos, 115; 143, emphasis in original).

The international law of 1918 to 1939, by contrast, undermines these distinctions by outlawing wars of aggression, thereby also eliminating the distinction between hostis and inimicus, the public versus the private enemy. Wars opposed to this new legal order become unjust wars, and the enemy becomes a criminal—a criminal against humanity. Kant, the author of “Perpetual Peace,” already anticipated something of these developments in his confused concept of “the unjust enemy.”

IV. The Critique of Kant

“No war of independent states against each other can be a punitive war (bellum punitivum),” writes Kant in his late work The Metaphysical Elements of Justice of 1797. ²² In the state of nature, states possess both a right to go to war as well as the right to retaliate for offenses committed against them (Kant, MEJ, ¶ 56, 116). In this condition, there is no judge to arbitrate among states, nor is there a superior in relation to them, ²³ and precisely because of this Kant concludes that

nor, again, can any war be either a war of extermination (bellum internecinum) or of subjugation (bellum subjugatorium), which would be the moral annihilation of a state. . . . The reason there cannot be a war of subjugation . . . is rather the idea that the right of nations involves only the concept of an antagonism in accordance with principles of outer freedom by which each can preserve what belongs to it, but not a way of acquiring, by which one state’s increase of power could threaten others. (Kant, MEJ, ¶ 57, 117)

One can demand “supplies and contributions from a defeated enemy,” but one cannot “plunder its people,” nor “subjugate them,” nor “rob them of their civil freedom” (MEJ, 118). So great is Kant’s attempt to circumscribe war in accordance with moral precepts respecting the dignity of the person and the moral status of peoples, that he even prohibits states from using their subjects in such a manner as would make them “unfit to be citizens” once hostilities are concluded (MEJ, 117). This includes using people as spies, assassins, poisoners, snipers and for spreading false rumors. Wars must be concluded by treaties and prisoners must be exchanged without ransom.

It is clear that Kant is at pains to limit both the right to go to war (jus ad bellum) and the right within war (jus in bello) in as much as possible to accord with the principle of treating human beings as ends and never only as means. Schmitt also praises “Kant’s greatness and humanity” (Nomos, 142; 170), but is greatly puzzled by the turn Kant’s argument then takes in paragraph 60 of The Metaphysical Elements of Justice, when Kant introduces the concept of an “unjust enemy” [der ungerechte Feind] (MEJ, ¶ 60, 118). Whereas the idea of a non-punitive war among states is, in Schmitt’s terms, “a non-discriminatory concept of war,” with the introduction of the concept of an “unjust enemy,” Kant’s thought threatens to regress back to viewing war as justa causa and to see the enemy, “the hostis,” as a criminal. But who is the “unjust enemy,” against whom the right of those who are “threatened by him or who feel threatened by him have no limits?” ²⁴ (MEJ, ¶ 60, 118; Nomos, 141; 169).

Kant’s answer is that this is “an enemy whose publicly expressed will (whether by word or deed) reveals a maxim by which, if it were made a universal rule, any condition of peace among nations would be impossible and instead a state of nature would be perpetuated” (MEJ, ¶ 60, 119, my emphasis). As examples of this maxim, Kant only cites violations of public contracts, but it is clear that he has a much more expanded notion of what this might involve. And this is the source of Schmitt’s anxiety. Schmitt confidently asserts that it is “certainly not the opponent who has broken the rules of war and has violated the right to war by perpetuating crimes and atrocities.” [I must add that I am not sure about how Schmitt arrives at this through a reading of Kant but I will not pursue this point further here.] “If freedom is threatened, then by whom, and who will concretely decide?” asks Schmitt. “All this remains open. . . . . And sounds like the old doctrine of just war . . . ” (Nomos, 141; 169).

As a jurist, Schmitt is right to be concerned with the distinction between word and deed and to question whether words alone would suffice to make one an “unjust enemy.” Is ideological propaganda by a state that supposedly contradicts the established international order sufficient to declare it an “unjust enemy,” for example? Think here of contemporary Iran. Is not Kant’s principle dangerously expansive and vague in that it seems to eliminate distinctions between wars of words and wars of deeds?

There is a more direct way of introducing some content to Kant’s definition and this would involve reading this principle in the light of Kant’s earlier work on “Perpetual Peace” of 1795. An unjust enemy could be interpreted as one who would reject the three definitive, as opposed to provisional, principles of Perpetual Peace. These are: “The Civil Constitution of Every State should be Republican”; “The Law of Nations shall be founded on a Federation of Free States”; and “The Law of World Citizenship Shall be Limited to Conditions of Universal Hospitality” (Kant [1795] 1923, 434–46; 1994, 99–108). ²⁵ Any state that refuses to enter into a “lawful condition” with other states, by explicitly refusing to acknowledge these principles, remains in a “state of nature,” that is, a “state of hostility.” That there is textual evidence for my reading is provided by two further arguments of Kant’s.

First, since the freedom of all nations would be threatened by those who deny these principles, other nations can wage war against them but cannot make them disappear from the earth since this would be “injustice against its people, which cannot lose its original right to unite itself into a commonwealth, though it can be made to adopt a new constitution that by its nature will be unfavorable to the inclination for war” (MEJ, ¶ 60, 119). A people “can be made to adopt a new constitution;” in other words, regime change to make the unjust enemy respect the principles of perpetual peace is permissible. Schmitt is not wrong then in seeing in Kant’s text the beginnings of a vision of a liberal world order within which the range of regimes that would be considered legitimate is narrowed to those that would respect the laws of nations, defined through the principles of perpetual peace. But this answer raises further difficulties: Are only republics to be tolerated in the new world order then? How about empires such as the Chinese, for which Kant has some kind words in other texts? Or non-sedentary and nomadic peoples who may not want to be subjugated by European powers and whom Kant praises in other writings? How extensive and intensive are the principles of “perpetual peace”? Questions remain. ²⁶

Second, in the paragraphs following his discussion of the unjust enemy, Kant returns to his idea of an “association of states” (ein Völkerbund) that would renounce the state of nature prevailing among states, and thereby also give up the unilateral right to go to war (MEJ, ¶ 61, 119). As is well known, Kant finds it quite difficult to articulate the exact political form of such an association; he rejects the idea of a world-state; and wishes to defend the principles of a world-republic and ends up with “an association of several states to preserve peace,” which can then be called “a permanent congress of states, which each neighboring state is at liberty to join” (ibid., my emphasis). May be then the unjust enemy is the one who refuses to join such an association altogether; or who wishes to exit once having joined, or may be even a group of states who form a competing association based on different principles, thus hindering the development of world-society towards a condition of law.

I think that at least two readings of Kant are possible on these issues: on one reading, the unjust enemy would be the one who would reject all three definitive articles of perpetual peace as a package; on a second reading, some states may reject some versions of Articles 1, 2, and 3 but may accept some form of the law of nations and a “peaceful federation.” ²⁷ In particular, not all nations may be willing or able to adopt a “republican constitution.” Should they also to be considered unjust enemies?

It is hard to deny that in the obscurity of these passages we encounter some of the paradoxes of a liberal law of nations in the Kantian sense. First and foremost, nations must of their own accord wish to enter a “pacific federation,” that is, at a minimum, they must establish a condition of lawful coexistence with each other such that conflicts can be adjudicated and the option of war is severely limited—even if not wholly eliminated. Schmitt, unlike Kant, doubts there can ever be such a condition of legality among nations, based on the authority of a “neutral” judge. For him, the political governs human actions all the way down. Thus, rather than try and eliminate war among nations or subject it to the judgment of only seemingly neutral instances, Schmitt recommends that one accept the inevitability of war among sovereign states and treat the enemy not as a criminal but as a worthy opponent. For Schmitt, interstate wars are more like duels than wars. But Kant is more radical here: he sees wars not as duels but as inflicting most harm on ordinary people who, unless they live in a republic, are neither able to resist serving in the army nor resist losing life and limb for the glory of sovereigns.

Although much of this may sound arcane to our ears, and many historical nuances may escape us, ²⁸ we should note that Schmitt does not mince his words and sees Kant as initiating doctrinal changes that will eventually undermine the non-discriminatory concept of war. “But, just as obviously, it was possible for Kant,” he writes, “as it was earlier for theologians, to use a philosophical ethic to deny the concept of a justus hostis, and by introducing discriminatory war, to destroy the work of jurists of the jus publicum Europaeum” (Nomos, 143; 171). These changes will lead to the outlawing of wars of aggression through the Kellogg–Briand Pact of 1928 and the extension of international law to include not only “the crime of war” but also the category of “crimes against humanity.” Already in Kant’s injunctions against using human beings as spies, snipers and propagandists, some sense of human dignity that places limits on what can be done with and to human beings in war is evident.

Although all his criticisms of Kant are consistent with Schmitt’s claim that the political is the “most intense kind of human conflict,” and that therefore it cannot be made subservient to the legal, religious, moral or aesthetic domains, there is also a dimension of personal bitterness that accompanies many of his assertions. Schmitt sees the Nüremberg and Tokyo trials as a form of Siegerjustiz, victor’s justice, and illegitimate bootstrapping—“Nullum crimen, nulla poena sine lege” (No crime, no punishment without the law) is his judgment. Or, as he puts it more caustically with regards to the Holocaust: “Was it a ‘crime against humanity’? Is there such a thing as a crime against love?” ²⁹ ; and further, “Genocide—the murder of peoples—a touching concept; I have experienced an example of it myself: the extermination of the German-Prussian civil service in 1945.” Finally: “There are crimes against humanity and crimes for humanity. Crimes against humanity are committed by the Germans. Crimes for humanity are perpetrated on the Germans.”

Schmitt is not simply the theorist of agonistic and contentious politics but the theorist of the rights of states to conduct war for their own preservation and also the theorist who rejects concepts such as human rights and crimes against humanity as being moralizing glosses on superpower politics. ³⁰

In “Kant’s Idea of Perpetual Peace: At Two Hundred Years’ Historical Remove,” Jürgen Habermas discusses Schmitt’s critique of Kant. “The politics of a world organization,” writes Habermas, “that takes its inspiration from Kant’s idea of perpetual peace and is directed to the creation of a cosmopolitan order, harkens to the same logic, according to Schmitt: its pan-interventionism would inevitably lead to pan-criminalization, and hence the perversion of the goal it is supposed to serve.” ³¹ In particular, Habermas disputes Schmitt’s claim that “the politics of human rights leads to wars which under the guise of police actions take on a moral character; and second, that this moralization brands opponents as enemies, and the resulting criminalization for the first time gives inhumanity a completely free hand” (Habermas, KIPP, 188–89).

Undoubtedly, the last two decades since the end of the Cold War and the fall of the Berlin Wall in 1989 have been some of the most confusing and bewildering in terms of international alliances and world politics, and strange bedfellows have been created in the process. We still hear echoes of this Schmittian critique that the first Gulf War, the NATO intervention in Kosovo, and the Afghanistan and Iraq Wars conducted by the United States were instances of the “moralization of war,” that declared enemies to be criminals. ³² Certainly, contemporary Left-Schmittians who see each conflict in terms of the bid to global empire of a single hegemon have an easier time than the rest of us as public intellectuals and citizens, whose moral intuitions and political judgments on these issues have often been confused and conflictual, but not for lack of clear thinking or information. As Hannah Arendt observed in quite a different context, it is the mark of ideological thinking “to have a key to unlock” every riddle ³³ ; in the absence of such a key, we have to learn the art of making hard distinctions, such as may be ‘yes’ to the original U.S. action against the Taliban but ‘no’ to the Second Iraq War; may be ‘yes’ to Kosovo, even in the absence of a UN Security Council vote; may be ‘no’ to Libya even with a Security Council resolution etc. Making such judgments are the “burden of our times.”

In conclusion, I wish to explore new ways of thinking about international law and cosmopolitan human rights norms that give the lie to the qualms of some on the Left that international law yields a “Geistes Bastille”—an intellectual or spiritual prison. There are many dimensions to Schmitt’s discussion of external sovereignty and international law, but I would like to focus on one alone. Are human rights treaties that limit sovereignty in the post–World War II period moralizing impositions upon the will of democratic peoples? How can we conceptualize the relationship between international human rights norms to democratic sovereignty? There is an important debate among liberal and democratic thinkers on these issues and Schmitt’s thought is of little guidance in helping us think through our contemporary dilemmas.

Varieties of Sovereigntism

One of the most important developments in international law in the post–World War II period is, in addition to the criminalization of wars of aggression, the normative limitations placed on state sovereignty through the spread of human rights norms. I will refer to the many treaties that have been concluded since the Universal Declaration of Human Rights of 1948 as “cosmopolitan human rights treaties.” ³⁴ These treaties confirm the status of humans as rights-bearing beings not in virtue of their national citizenship but in virtue of their human personality, although such rights can be meaningfully exercised only in the context of specific polities. It is quite correct to see in these developments the flourishing of certain normative principles forcefully articulated by Kant.

Schmitt is just as cynical about limitations placed on internal sovereignty as he is about limitations imposed on external sovereignty. By not distinguishing between human rights norms limiting internal, domestic sovereignty and norms prohibiting wars of aggression, limiting external sovereignty, progressive thinkers who wish to use Schmitt’s thought to critique the hypocrisies of the current international order are risking throwing the baby out with the bathwater. In conclusion, I want to briefly argue that the model of a hegemonic imposition of cosmopolitan norms on self-determining polities misunderstands the contemporary world of treaties and states institutionally as well as normatively.

The normative objections raised by sovereigntists against recent legal developments can be separated into the nationalist and democratic variants. The nationalist variant traces the law’s legitimacy to the self-determination of a discrete, clearly bounded nation whose law expresses and binds its collective will alone. ³⁵ The democratic variant says that laws cannot be considered legitimate unless a self-determining people can see itself both as the author and the subject of its laws. For the democratic sovereigntist it is not paramount that the law express the will of a nation, of an ethnos, but that there be clear and recognized public procedures for how laws are formulated and in whose name they are enacted and how far their jurisdiction extends in the name of a demos.

The democratic sovereigntist argument has many adherents, among them Thomas Nagel, Quentin Skinner, Michael Walzer and Michael Sandel. ³⁶ One way to introduce some clarity into the debate between cosmopolitans and sovereigntists is to focus on a family of global norms which enjoys widespread support. These are international human rights norms, originating with the Universal Declaration of Human Rights of 1948. A democratic sovereigntist such as Thomas Nagel and a cosmopolitan such as Habermas both agree that—pace Schmitt—in addition to international law concerning the prohibition and conduct of war among states, human rights constitute the foundations of the post–World War II international system. ³⁷ The spread of international law need not take the form of a social contract for the formation of a world-state that would transcend the political autonomy of existing states. ³⁸ Instead, as Habermas argues, “Today any conceptualization of a juridification of world politics must take as its starting point individuals and states as the two categories of founding subjects of a world constitution” (ibid., 449, emphasis in original). So the question is not whether one can move to a world without competing states but whether there are modes of mediating international norms with national–democratic ones that would not involve subordinating the national to the supranational and would safeguard legitimate plurality in the interpretation, adjudication and application of human rights norms.

I would like to distinguish among three different, but mutually supporting, models that try to conceptualize this mediatization between cosmopolitan human rights norms and democratic processes of will and opinion formation. Such mediatization can take place through jurisgenerative processes of “democratic iterations” that interpret and contextualize the national in the light of the cosmopolitan, giving both sets of norms new and unexpected hermeneutic context. A second form of mediatization involves the institutional impact of international human rights covenants on states subscribing to them; and a third form pertains to the impact of such treaties on courts and adjudication. My argument is that many left critics of cosmopolitanism ignore the actual workings of the system of international law and view this new legal order as if it were a smooth “command structure,” but it is not. The challenge today is to develop an institutional, normative and conceptual model for articulating the universe of this new law of nations. ³⁹

Conclusion

We have entered a new stage in the development of global civil society in which the relationship between state sovereignty and various human rights regimes generate dangers of increasing interventionism but also paradoxically create spaces for cascading forms of democratic iteration across borders. It is the perplexities of this new legal and political landscape that send many critics on the left and the right to Carl Schmitt’s work. Yet Schmitt’s work, as historically rich and conceptually challenging as it may be, is not easily extricated from its ideological moorings in his own political entanglements with the Nazi regime. Nor was Schmitt wrong to see in Kant’s doctrine of the “unjust enemy” certain ambiguities and obscurities that may lead to a coercive regime of liberal cosmopolitanism. Yet the evolution of human rights norms in the post–World War II period ushers in a new phase of international law, which cannot be interpreted as a coercive regime of neo-liberal hegemonic intentions. Critics who do so fail to understand the structure of mediations between international law and democratic sovereignty that are created by these developments. In conclusion, I have briefly suggested three different but complementary approaches to understanding such mediations. Certainly, superpower hypocrisies in upholding or violating norms of aggressive war cannot be prevented by a regime of the spread of human rights norms alone, but by distinguishing between these two aspects of the international legal order, citizens become more empowered to criticize their own governments. Carl Schmitt’s legacy, in contrast, disempowers citizens by giving the state the monopoly of interpretation over its own strategic interests of survival in the multiversum of states.