Beyond the line: Carl Schmitt and the constitutive outsider of the international

Introduction

In The Legal World Revolution, his last published work (Piccone and Ulmen, 1987: 4), Carl Schmitt (1987) dedicates its last section to a discussion on humanity as a political subject, concluding it with commentaries on Reinhart Koselleck’s work on asymmetric counterconcepts. Making use of Koselleck’s terms, Schmitt was concerned with humanity becoming an asymmetric counterconcept, thus legitimizing a process of discrimination that would turn the ‘negatively valued person’ into ‘an unperson’ whose worthless life must be destroyed. He warned that concepts such as ‘humanity’ and the ‘human’ contain the possibility of the deepest inequality. Approvingly commenting Koselleck’s analysis of conceptual pairs of political history that exemplify asymmetrical counterconcepts with claims to universality (Greek/barbarian; Christian/heathen; human/inhuman), Schmitt stresses how the adversary is polemically discriminated as unequal within such conceptual pairs. Moreover, he emphasizes how humanity and the human lead ‘conceptually and figuratively to an increasingly intensified asymmetrical structure’ that surpasses the ‘divisive power’ of the other two asymmetric conceptual pairs (Schmitt, 1987: 88). Schmitt (2007a: 54) was redeploying the critique made in his 1932 The Concept of the Political, where he warned that invoking humanity would lead to incalculable, negative effects, such as ‘denying the enemy the quality of being human and declaring him to be an outlaw of humanity’. Indeed, he was redeploying a critique of the criminalization of enmity and war he had been opposing since Versailles.

As Koselleck explains, the singularization of concepts provokes the construction of counterconcepts, one concept discriminating against the concept defined as its ‘other’. Moreover, there are concepts that function denying the reciprocity of mutual recognition, thus structuring an asymmetric opposition. In his analysis of asymmetric counterconcepts, Koselleck makes an important methodological differentiation between the past historical usage and the semantic structures of antithetical concepts. ¹ Opting for the latter, Koselleck is concerned with the way in which the negation of the counterposition of the ‘other’ takes place within asymmetric counterconceptual structures. He explains that unequally antithetical counterconcepts characteristically imply a (positive) conceptual position grounded on terms that structurally authorize the absolute negation of its counterconceptual ‘other’. Importantly, he contends that although words may change, ‘the asymmetric structure of the argument survives’ (Koselleck, 2004: 159), that is, the asymmetric structure of counterconcepts remains despite changes in their constituent names and historical contexts. In this article, considering this ‘structural iterability’ (Koselleck, 2004: 159), I offer a reading of an asymmetric structuring of counterconceptual relations in Schmitt, displacing the political towards the maritime limit of ‘the international’ (Walker, 2010: 1). In so doing, I argue that the concept of the pirate in Schmitt (2003: 93) marks a negative asymmetric counterconceptual position associated with a space of exception, ‘beyond the line’, in relation to which one may also identify the negative asymmetric counterconceptual position of the outlaw enemy of humanity. Rewriting R. B. J. Walker’s (2010: 23) formulation, I suggest the pirate marks the negative asymmetric counterconceptual position of the ‘constitutive outside[r]’ of the international.

In the past two or three decades in the English-speaking academic world, a significant number of studies have (re)turned to Schmitt and his work, most especially after 11 September 2001. More recently, some studies have focused on Schmitt’s ‘international’ political thought and other conceptual figures within his oeuvre (Hooker, 2009; Legg, 2011; Minca and Rowan, 2016; Odysseos and Petito, 2007). For instance, while some (re)turned to the concept of the ‘foe’ (Prozorov, 2006; Schwab, 1987; Ulmen, 1987, 1996, 2007), others focused on the ‘partisan’ (Gasche, 2004; Schulzke, 2016; Slomp, 2005, 2009) and others on the ‘pirate’ (Heller-Roazen, 2009, 2011; Policante, 2015; Rech, 2012). This article contributes to these literatures, offering a reading of the pirate in Schmitt inspired by Koselleck’s commentaries on asymmetric counterconcepts and, following his own advisement that ‘[t]he exception is more interesting than the rule’ (Schmitt, 2005: 15), by Schmitt’s own engagements with the humanity/outlaw of humanity asymmetric conceptual pair. In so doing, the article contributes to a mapping of a/symmetric counterconceptual relations structuring Schmitt’s international political thought and, most particularly, to a better understanding of the negative asymmetric counterconceptual position of the pirate therein. Moreover, it contributes to rethinking the pirate’s position in relation to both the outlaw enemy of humanity and the space of exception that marks the ‘outer limit’ of the international (Walker, 2016: 10).

Considering the structural iterability of asymmetric counterconcepts, the significance of the article’s contribution has to do with the mapping of the negative asymmetric counterconceptual position of this constitutive outsider of the international. Moreover, as an engagement with the tension between containment and intensification of inimical relations in Schmitt (Pankakoski, 2017; Shapiro, 2008), its significance lies also in a conceptual analysis of the outlawing of irregular combatants that speaks to contemporary political issues. In conceptually engaging with the pirate and its structural iterability, the article speaks most especially to a particular construction of the terrorist in the context of the war on terror, whose conceptual identification (illegal enemy combatant) and position (outside of international law) participate in the legitimizing of abject forms of violence (Griffith, 2006; Scheuerman, 2006). However, the aim here is neither to do a genealogy of the pirate (Heller-Roazen, 2009; Policante, 2015) nor to dispute or identify its ‘true’ conceptual identity, ‘historical’ or otherwise (Rech, 2012: 235). Displacing Schmitt’s ‘practices of conceptualization’ towards the sea (Walker, 2016: 2–3), the aim here is to map the position, and (re)positioning, of the pirate within Schmitt’s (2011d: 36) engagements with ‘the “systematic conceptual geography”’ of international law and its transformations, without losing sight of the structural iterability of asymmetric counterconcepts. Hence, the article concludes suggesting that the spectre of the pirate lives on, haunting the outer limits of ‘our’ international political world and legitimizing abject forms of violence.

Drawing the line in the sea: The political and the piratical

In The Concept of the Political, Schmitt famously affirms that the friend/enemy distinction is the ultimate foundation of the political. In this regard, George Schwab, the translator, observes that Schmitt used the German word ‘Feind in the enemy and not the foe sense’ (Schmitt, 2007a: 26, footnote of the translator; see also Schwab, 1970: 52-54). In Enemy or Foe, Schwab (1987: 194) argues that although it may appear as only a mere linguistic issue, the enemy/foe distinction ‘conceals a difference essential for a meaningful understanding of modern politics’. Conceptually, the enemy/foe distinction refers to a differentiation between public (enemy, hostis, polémios, ojeb) and private (foe, inimicus, echtrós, soneh) adversaries. Historically, the foe had (supposedly) faded away with the decline of the medieval order and the correlated rise of the secular, modern order of sovereign states in Europe. In this epochal transition, the medieval conception of just war (justum bellum) lost its religious character and war became detheologized, formalized and contained, most especially through the affirmation of the concept of just enemy (justus hostis), which also meant the ‘transformation of the public foe into the public enemy’ (Schwab, 1987: 199).

In a footnote to Schmitt’s Theory of the Partisan, Gary Ulmen, the translator, explains that the indistinction between the enemy and the foe within the German language forced Schmitt to distinguish the ‘real enemy’ from the ‘absolute enemy’. According to Ulmen, at issue was the distinction between a legitimate opponent (real enemy) against whom one fights lawfully and non-discriminatorily and a lawless opponent (foe or absolute enemy) against ‘whom one must fight to the death and destroy’ (Schmitt, 2007b: 89, footnote (of the translator) 90). In Koselleckian terms, at issue was the distinction between symmetric (friend/enemy) and asymmetric (enemy/foe) counterconceptual relations. In Return of the foe, quoting Schmitt’s (1963) Foreword to The Concept of the Political, Ulmen observes that Schmitt correlated the return of the foe with the problem of ‘the containment of war’ (Schmitt apud Ulmen, 1987: 187). The Foreword’s commentary was a continuation of the answer given that same year in Theory of the Partisan, where Schmitt dealt with the transformation of the real enemy into an absolute enemy or (new) ‘foe’ (Ulmen, 1987: 187). Thus, Schmitt was responding to ‘a lacuna’ in his political thesis, the broader problem of which being ‘how to cope with politics and war when the equation state = politics becomes blurred’ (Ulmen, 1987: 188).

As Étienne Balibar explains, the territorialization intrinsic to the modern state-form allowed its secularization by subordinating religion and domesticating war. However, the territorialization of the sovereign state and the detheologization of war were possible only ‘within the framework of a global order imposed on the entire earth as an “equilibrium” whose content is shifting but whose form is permanent’ (Balibar, 2004: 138). Indeed, as Schmitt (2007a: 53) puts it himself, the ‘political world is a pluriverse, not a universe’, which means that ‘every theory of the state is pluralistic’ in this specific, plural- or inter-statist, sense. As Carlo Galli observes, the inside/outside framing was ‘strategic’ for Schmitt. It enabled the correlated dualistic framings of criminal/enemy and police/war (Galli, 2010: 161, 2015: 101). Moreover, as Schmitt (2003: 141) reminds in his 1950 The Nomos of the Earth, sovereign states (originally) shared the same European soil and belonged to ‘the same European “family”’. As equal members of this family of sovereigns, friend and enemy were brothers: ‘only my brother can challenge me and only my brother can be my enemy’ (Schmitt, 2007b: 85, footnote (of the translator) 89). The enemy is ‘the brother enemy’ (Derrida, 2005: 150). Hence, as Koselleck (2004: 191; emphasis added) suggests, the friend/enemy conceptual pair may be characterized by its ‘political formalism’, and, ‘because of its formal negation’, identified as ‘purely symmetrical counterconcepts’.

Although some readers suggest Schmitt ultimately equates the political with the state (Derrida, 2005), others have questioned the equation, pointing to Theory of the Partisan as an example of his moving away from the state-centric conception of the political (Hooker, 2009; Schulzke, 2016; Shapiro, 2008; Slomp, 2005, 2009). Having the contained European interstate land war and the modern regular state army as ideal-types in his backdrop (Balibar, 2004: 138; Hooker, 2009: 159–160), Schmitt (2007b: 14–22) defines the partisan as a non-state actor who fights irregularly, with intensified political engagement, increased mobility of combat, and who, moreover, is strongly attached to the homeland. For Gabriella Slomp, the Schmittian theory of the partisan implies ‘an under-stated yet all-important criterion for differentiating the telluric and the global partisan’. While the former aims to govern the state she or he domestically fights (for), the latter fights for undermining and transcending the very (inter-)state form of the political. According to Slomp (2009: 58), the telluric character marks the distinction between the traditional partisan and the global revolutionary fighter. As Kam Shapiro (2008: 82–83) observes, Schmitt’s partisan story is one of the transformation of a concept originally related to the local defender of a national territory into one associated with the global agent of world revolution. In being this ‘chameleon-like’ (Gasche, 2004: 30), ambiguous intermediate figure in a story of the tension between containment and intensification in political war (Pankakoski, 2017), the partisan displaces the asymmetric enemy/foe dualism, which itself displaces the symmetric friend/enemy distinction that grounds the Schmittian conception of the political (Schmitt, 2007a).

In Theory of the Partisan, Schmitt affirms that the irregularity of the partisan has some relation to the regularity of the sovereign soldier. Moreover, in delimiting the partisan’s political irregularity, he articulates two sea-related categories and their different irregularities. On one hand, he points to the absolute irregularity of the pirate, affirming that it ‘lacks any relation to regularity’. On the other hand, he recognizes that being ‘equipped with a “letter” from a state government’, the privateer’s irregularity, in contrast to the pirate’s, ‘has some relation to regularity’. Hence, the sea war privateer and the land war partisan ‘could be compared with each other’ (Schmitt, 2007b: 70), their regular irregularities being distinguished from the irregular irregularity of the pirate. The partisan and the privateer remained within ‘the political sphere’ (Schmitt, 2007b: 91), conceptually marking particular inner limits of the Schmittian political pluriverse. In contrast to these intermediate categories, Schmitt conceptualizes the pirate outside of his sovereign encircling, marking the maritime outer limit of the political world. Indeed, he diametrically opposes the intense political character of the partisan to ‘the unpolitical character’ of the pirate (Schmitt, 2007b: 14). Moreover, land and sea being different orders and ‘elemental spaces’ (Schmitt, 2007b: 21), the pirate of the sea was elementally distinguished from the telluric partisan. In addition, contrasted with the partisan, whose attachment to a homeland grounds a limited form of hostility, the pirate of the characterless ² sea could be identified with the unlimited hostility of the ‘absolute enemy’ (Schmitt, 2007b: 89, footnote (of the translator) 90). Drawing the line in the sea, Schmitt distinguishes the political from the piratical, where the latter is synonymous with the unpolitical.

In his 1937 The Turn to the Discriminating Concept of War, Schmitt (2011d: 36) had diagnosed that the concept of piracy had become relevant again, reminding that it represented ‘the breakthrough of a completely new type of international law that explodes the concept of the state’. Writing in a delicate (personal) moment of the interwar period, ³ he was concerned with fundamental transformations of the world order, as they manifested themselves through significant changes in international law, such as the turn from a non-discriminating to a discriminating concept of war. Associated with a move towards ‘a new, universalistic world order’ (Schmitt, 2011d: 33), the discriminating turn had ‘entered the history of modern international law with President Wilson’s declaration of war on April 2, 1917’ (Schmitt, 2011d: 31). According to Schmitt, (at least) part of this new problematic involved the correlation between the American president’s moral argumentation and the concept of piracy. Although not using the word ‘piracy’, Wilson identified the German U-boats as ‘agents of a war led “against mankind” and ‘against all nations”’. In so doing, Schmitt pointedly observed, the American president described Germany with ‘a formulation common to the pirate: hostis generis humanis’ (Schmitt, 2011d: 218, endnote 178). Marking ‘the breach point’ (Schmitt, 2011d: 73, 218, endnote 179), the concept of piracy was symptomatic of a profound transformation of ‘the entire structure of the order of international law’ (Schmitt, 2011d: 73). It signalled the ‘intensification of war and enmity’ (Schmitt, 2011d: 72) and thus the (re)turn to a discriminating concept of war ‘backed by trans-state and trans-national claims to justice’ (Schmitt, 2011d: 32).

In this context, a symptomatic manifestation of such transformations was the articulation of ‘the English concept of piracy’ in the Nyon Conference in September 1937 (Schmitt, 2011d: 73). Summoned by England and France, the Nyon Conference concluded that the maritime attacks committed in the Mediterranean by (German) submarines in the context of the Spanish Civil War amounted to violations of international law and constituted ‘acts contrary to the most elementary dictates of humanity, which should be justly treated as piracy’ (Nyon Agreement apud Heller-Roazen, 2011: 23). Schmitt’s 1937 The Concept of Piracy (2011b) was a prompt reaction to this polemical mobilization of piracy, which, regrettably for him, ‘radicalized the trend towards moralizing warfare and discriminating against the public enemy’ (Rech, 2012: 236). The essay constitutes, in the words of Daniel Heller-Roazen (2011: 24), ‘an incisive analysis of the polemical force and function of the invocation of humanity and piracy in war’. In its very beginning, Schmitt (2011b: 27) critically observes that ‘[a]ccording to the old formula – one often repeated at the conference – the pirate is defined as the “enemy of mankind,” hostis generis humanis’. Thus, Schmitt denounces the polemical use of the enemy of humanity, aiming ‘to discredit the criminalization of the German U-Boot’ and justify ‘the arms of National Socialist Germany’ (Heller-Roazen, 2011: 24).

In The Concept of the Political, Schmitt (2007a: 30) had made the point that ‘all political concepts, images, and terms have a polemical meaning’, resulting in ‘a friend-enemy grouping’ when related to a concrete conflictual situation. Moreover, in his 1933 Forms of modern imperialism in international law, he had observed that ‘whoever has real power is able to appropriate and determine concepts and words’, the emperor being the ‘ruler over grammar as well’ (Schmitt, 2011a: 44). Opposing the ‘American imperialism’ and the universalistic turn associated with the Geneva League of Nations, he had warned (‘Germans’) that imperialism ‘forges for itself its own concepts’ and involves the ‘capability to determine the content of political and legal concepts’ (Schmitt, 2011a: 44–45). One year before, he had famously mobilized the Proudhonian formula – ‘whoever invokes humanity wants to cheat’ – in his denunciation of the concept of humanity as ‘an especially useful ideological instrument of imperialist expansion’ (Schmitt, 2007a: 54).

Hence, The Concept of Piracy is both ‘intensely “political”’ and polemical (Heller-Roazen, 2011: 24). It is a political intervention in the polemical forging of the asymmetric counterconcepts of humanity and the outlaw of humanity. Polemically, Schmitt contrasted the European continental conception of piracy with the English one. He argued that, according to ‘continental international law’, certain characteristics were fundamental to the concept of piracy. It had to take place in a space ‘untouched by any state’s territorial sovereignty’, such as the stateless sea. The individual pirate had to become ‘denationalized’. The nature of the act had to be ‘directed against all states’. Its goal had to be ‘private enrichment’. Moreover, given the ‘equation between the state and the political’, piracy was ‘a characteristically unpolitical act’ (Schmitt, 2011b: 27). Here, one should note that this distinction between the political and the piratical, where the latter is synonymous with the unpolitical, is the same one conditioning the conceptualization of the partisan. Moreover, one should remember Schmitt’s (2007a: 31–32) own observation that, above all, ‘the polemical character determines the use of the word political’.

In opposition to the European continental conception, Schmitt argued, the English concept of piracy involved the politicization of the piratical, which also meant the criminalization of sea enmity and warfare. Considering that one constitutes oneself in opposition to ‘whom one recognizes as an enemy’, the unpolitical pirate, as conceived in Schmitt’s continental conception, did not politicize the concept of humanity. However, with the victory of the English position in Nyon, and the consequent transformation of piracy into a political ‘international problem’ (Schmitt, 2011b: 28), the correlated political conception of the pirate, inseparable from the spectre of the outlaw enemy of humanity, involved the politicization of humanity. Hence, as Walter Rech (2012: 235) noted, Nyon ‘represented the first concrete breach of the international legal taboo that the public enemy cannot be criminalized’. Few years later, in his 1945 The International Crime of the War of Aggression, Schmitt (2011c: 164–169) explained that the English conception of ‘piracy jure gentium’ served as an ‘exemple-type of an international crime’ for those advocating the outlawing of war since Wilson’s declaration of 2 April 1917. The definition of the ‘pirate jure gentium’ as the denationalized ‘enemy of all humanity’ served as the prime example for the conception of the ‘perpetrator of the new international crime “war”’ (Schmitt, 2011c: 166). The concept of piracy, Schmitt observed, was the point from which to access ‘the international criminalization and penalization of war’ (Schmitt, 2011c: 167).

Schmitt concluded The Concept of Piracy warning that the triumph of ‘the English concept of submarine piracy’ in Nyon, and in international law, more broadly, would mean the displacement of the concept of piracy within the system of international law. From ‘the empty space where politics and the state are absent’, the concept of piracy would migrate towards the ambiguous space of ‘interim concepts between war and peace’, signalling a broader turn towards ‘total war’ (Schmitt, 2011b: 29). As Claudio Minca and Rory Rowan (2016: 161) observe, Schmitt ‘had taken note of the debate about the category of “total war” that had emerged in Britain, France and Germany in the shadow of the First World War’. In his 1937 Total Enemy, Total War, Total State, Schmitt’s contribution to the ‘total war’ debate was to insist that it was ‘the total enemy that [gave] the total war its meaning’ (Schmitt, 2015b). In other words, it was the qualitative change in the concept of the enemy – from (just) enemy to (unjust) total enemy – that ‘produced a qualitative change in the concept of war’ (Minca and Rowan, 2016: 161). Hence, if ‘the danger of evoking universal, moral categories’, such as humanity, in the international political order was precisely that ‘they pushed the concept of war into absolute terms’ (Minca and Rowan, 2016: 161), then one should also be aware of how the totalization of the enemy contributes to the totalization of war. For Schmitt, invoking the English concept of the pirate (jure gentium), meaning the outlaw enemy of humanity, was symptomatic of the totalization of both enmity and war. At stake was the (re)structuring of a/symmetric counterconceptual relations and the (dis)placement of the political/unpolitical line.

Beyond the line: The constitutive outsider of the international

In The Nomos of the Earth, Schmitt (2003: 351–352) argues that a new nomos ⁴ of the earth emerged after the great ‘discoveries of land and sea’ by Europeans in the 16th century. Now global in space, the new nomos of the earth had a Eurocentric structure based on the distinction and equilibrium between land and sea. Indeed, its order and orientation involved a dual balance: one between land and sea and other between land powers (Schmitt, 2003: 352–353). As he suggests in Land and Sea, the elements (earth, water, air, fire) are ‘collective signifiers’, meaning that each of them ‘point to different grand possibilities of human existence’ (Schmitt, 2015a: 9–10). Hence, land and sea constituted ‘two wholly different worlds’ (Schmitt, 2015a: 75), which developed ‘completely different concepts of war, enemy, and booty’ (Schmitt, 2003: 353). At the basis of the European terrestrial order lied the Vattelian, duel-like, ‘war in form’ (Schmitt, 2003: 166). Conceived as a conflict between ‘state-organized’ militaries, land war limited the concept of enmity to regular soldier combatants, thus protecting civilian non-combatants (Schmitt, 2015a: 74). In contrast, in the European maritime world, the means of sea warfare could be legitimately ‘directed at combatants as well as non-combatants’ (Schmitt, 2015a: 74). Sea warfare had a propensity for ‘total enmity’ (Schmitt, 2015b; Minca and Rowan, 2016: 161). Indeed, as Mika Ojakangas (2006: 174) observes, while land war was conceived by Schmitt as a formal conflict between ‘justi hostes’, naval war was identified as ‘a war without such rules’, and based on ‘the concept of hostis generis humani, the enemy of humankind’.

The European struggles over ‘land- and sea-appropriations’, Schmitt observes in The Nomos of the Earth, created the necessity to draw certain ‘global lines’ (Schmitt, 2003: 88), in order to ‘divide and distribute the whole earth’ (Schmitt, 2003: 86). Historically, there have been different types of global lines. For instance, while the rayas pertained to the unity of the ‘spatial order of the respublica Christiana of the Middle Ages’, the amity lines belonged to ‘the age of religious civil wars between land-appropriating Catholic powers and Protestant sea powers’ (Schmitt, 2003: 92). The amity line marked an inside/outside divide which was determinant for the political and legal meaning of international phenomena. It marked the end/beginning of the European public law and order. ‘Beyond the line’, Schmitt remarked, there was ‘an “overseas” zone in which, for want of any legal limits to war, only the law of the stronger applied’ (Schmitt, 2003: 93–94). The crucial point here is that ‘[e]verything that occurred “beyond the line” remained outside the legal, moral, and political values’ which applied within the European interstate order (Schmitt, 2003: 94). Hence, ‘war pursued against non-state, i.e. barbarian peoples or against pirates’ (Schmitt, 2003: 167), in being pursued beyond the line, meant an asymmetric structuring of antagonistic relations of violence outside the containment of European public law. Thus, the pirate conceptually marked this space of exception, beyond the line.

Inspired by Ernst Kapp’s Hegelian ‘comprehensive thought-world’, Schmitt observes in Land and Sea that, following the ‘potamic’ and the ‘thalassic’ periods, ⁵ the modern stage attained an ‘oceanic culture’ propelled by ‘the discovery of America and the circumnavigation of the earth’ (Schmitt, 2015a: 20–21). The new nomos of the earth involved a dual move of land and sea appropriations. In The Nomos of the Earth, Schmitt observes that the appropriation and ruling of the sea involved the international outlawing of the pirate. Declared by the British Empire ‘to be an enemy of the human race’, the pirate was then ‘ostracized and expelled, stripped of his rights, and made an outlaw’ (Schmitt, 2003: 44). Christopher L. Connery (2001: 177) points out that, in its being ‘a constitutive outside to landedness’ within the European oceanic signification that became hegemonic since the 19th century, the ocean ‘has been nearly inseparable from the history of the concept of the international as we now know it’. Hence, beyond the line drawn in the sea, the outlawed pirate conceptually marks the ‘outer limit’ of the international (Walker, 2016: 10). Elementally related to the limitless sea, the outlawed pirate points to a maritime ‘constitutive outside’ conditioning ‘modern political imagination’ and enabling terrestrial ‘forms of political life organized as a spatial structure of insides and outsides’ (Walker, 2010: 23). Thus, considering its conceptual position in relation to the world order of the sea and the conceptual position of the ocean in relation to the landedness grounding the European international order of territorial sovereign states, the outlawed pirate, I suggest, conceptually names and works as a constitutive outsider of the international.

Moreover, as Ojakangas (2006: 174) observes, in the conceptual system of modern international law, the outlawed pirate is inseparable from the conceptual position of the ‘discriminating concept of the enemy without rights (hostis criminalis)’. This is a conceptual position diametrically opposed to that of the political enemy. Consequently, between the concept of the enemy (as justus hostis) and the pirate (as hostis humani generis), there is ‘an absolute dissymmetry’ (Ojakangas, 2006: 179). Borrowing Inna Viriasova’s (2016: 95) terms, the pirate internationally marks the total negativity of ‘the absolutely unpolitical’. Its piratical being points to a political totalization that ‘excludes unpolitical life from the pre-political field’ (Viriasova, 2016: 99). Hence, the international outlawing of the pirate conceptually resembles Giorgio Agamben’s conception of the sovereign decision on the unpolitical (Viriasova, 2016: 99, footnote 52). ⁶ Indeed, Agamben (1998: 36) himself observes that Schmitt’s conception of ‘the nomos of the earth always implies a zone that is excluded from law’, that is, a space ‘beyond the line’, where the laws and limits fixed by the European interstatist nomos are suspended and which Schmitt assimilated to ‘the state of exception’. In this regard, Minca and Rowan observe, after quoting Schmitt’s commentaries on Wilson’s correlation between the German U-boats and piracy, that ‘the structure of the pirate in international law mirrors the status’ of Agamben’s homo sacer. Set ‘outside the community of states’ but still subjected to ‘the force of international law’, the pirate is ‘at once excluded from and subject to the law’ (Minca and Rowan, 2016: 163, 184, note 5). Borrowing Agamben’s (1998: 21, 85) formulation, the pirate is subject to the ‘inclusive exclusion’ of the – international – exception.

In his genealogy of piracy, Heller-Roazen suggests that four characteristics constitute the legal and political problem of piracy from classical antiquity to modern international law. First, it involves an exceptional region in which exceptional legal rules apply. Second, it involves total antagonism. Third, it involves the indistinction between criminal and political categories. Fourth, it involves a transformation of the concept of war. Conjoined, these distinctive characteristics compose what he named the ‘piratical paradigm’ (Heller-Roazen, 2009: 10–11). Identified as ‘the common enemy of all’ (communis hostis omnium) by Cicero in classical antiquity and as ‘the enemy of the human species’ (hostis generis humani) by Bartolus in medieval times, the pirate was renamed in modernity as ‘the ‘enemy of humanity’’ (Heller-Roazen, 2009: 10), thus, negatively, justifying humanity. Conversely, humanity as a legal category had been politically mobilized since the trial of the Bourbon king after the French Revolution, when the Jacobins accused him of being both a traitor of the French state and a ‘criminal toward humanity’ (Heller-Roazen, 2009: 156–157). Mobilized in the context of the First World War, as repeatedly denounced by Schmitt, humanity was then internationally legalized in the concept of ‘crimes against humanity’ established by article 6(c) of the 1945 Charter of the International Military Tribunal at Nuremberg (Heller-Roazen, 2009: 158–159). ⁷ Hence, humanity emerged as the universal positivity within an asymmetric counterconceptual structuring whose negative pole was marked by absolute ‘crime or enmity, if not both’ (Heller-Roazen, 2009: 159–160).

Conceptually, the outlawed pirate marked this asymmetric counterconceptual position of absolute negativity. As Heller-Roazen (2009: 144) and Rech (2012) observe, Schmitt was very much aware of ‘the political significance of the usage of the term “piracy” in that context’. Indeed, he ‘was one of the few to stress that the alteration of the concept of piracy was a sign of epochal transformations in the world of public order’ (Rech, 2012: 261). He knew that no name would work quite as well as that of the outlawed pirate in order ‘to evoke a united humanity’ (Heller-Roazen, 2011: 24). For as Koselleck (2004: 180–181) would later point out, the counterconcepts of humanity and inhumanity, characterized by an asymmetric semantic structure, are ‘deeply polemical in form’. Once invoked in political language, the ‘totalizing concept’ of humanity gives rise to ‘totalitarian consequences’ (Koselleck, 2004: 187): when intending ‘the exclusion of other humans’, the ‘appeal to “humanity”’ works to eliminate these others ‘from the universal class to which they belong as human beings’ (Koselleck, 2004: 181). This ‘negating function’ became intrinsic to the political appeal to humanity since the Enlightenment (Koselleck, 2004: 183), when humanity turned into ‘a powerful instrument of polemic’, which meant that whoever was contraposed to this enlightened abstraction risked being identified with its absolute negation, that is, with inhumanity (Heller-Roazen, 2009: 156). As Schmitt seemed to know all too well, the outlawed pirate, in its negative asymmetric counterconceptual position, was a prime candidate for this kind of polemical use.

Rereading Koselleck (2004: 156–159), the important point here, I argue, is less the individual name (‘pirate’) than the asymmetric counterconceptual structuring that accompanies the pirate. In other words, the pirate’s negative asymmetric counterconceptual position is important because it speaks of a structure that ‘survives’ the ‘historical singularity’ of its name (Koselleck, 2004: 159). Hence, I suggest, the importance of mapping the pirate’s position, and (re)positioning, in Schmitt’s engagements with the conceptual order of international law and its transformations. However, considering the structural iterability of asymmetric counterconcepts, there is another observation I want to make here concerning the pirate’s relation to the sea and to a specific epoch. In the modern nomos of the earth based on the separation and equilibrium between land and sea, the pirate, in its association with the stateless space of the sea, conceptually marked the maritime constitutive outside of the international order grounded on landedness. The pirate conceptually marked that space of exception, beyond the line, in relation to the world order of the sea. But, as Schmitt points out in concluding both Land and Sea and The Nomos of the Earth, industrial developments and new technologies enabled moving towards and conquering the element of the air, which meant the inauguration of a ‘new stage of the planetary spatial revolution’ (Schmitt, 2015a: 97). With the airplane, he observes, ‘the human raised itself above the surfaces of the land as above the surfaces of the sea’ (Schmitt, 2015a: 90). These transformations signalled the end of the former separation and equilibrium between land and sea and the consequent collapse of the Eurocentric nomos of the earth. They also signalled that a new nomos was ‘growing irresistibly’ (Schmitt, 2003: 355).

In this context, I suggest, it is important to differentiate the pirate’s name and historical singularity from its negative asymmetric counterconceptual position and structural iterability. For thinking of the pirate only in relation to the former would have spatial and temporal implications. Spatially, it would mean tying the pirate exclusively to the spatial element of the sea. Temporally, considering epochal transformations such as the one marked by the move towards the air, it would mean binding the pirate exclusively to a past (pre-modern or pre-contemporary) time, hence the conditions of possibility for (critiques of) analogies or comparisons between pirates of the sea and terrorists of the land and/or air, as well as between ‘historical pirates’ and ‘contemporary terrorists’ (Rech, 2012: 235; emphases added). Differently, thinking of the pirate’s negative asymmetric counterconceptual position and structural iterability, I suggest, it is important to think about and follow the traces of the piratical that survive historical singularities and epochal changes. In other words, it is important to think about and follow the traces of the piratical spectre that survives the historical (ontic) pirate. It is in this way, for instance, that I read Heller-Roazen’s suggestion that the piratical paradigm proposed by him enables accounting for ‘the unmistakable presence of the figure of the “enemy of all” in our time’. Neither exclusively tied to the name ‘pirate’, nor to the space of the sea, nor to a (past) historical epoch, the surviving spectre of the pirate appears as an ‘exceptional legal person’ when and wherever all those ‘four elements of the paradigm may be found’ (Heller-Roazen, 2009: 177). Thus, untied ‘from any single earthly element’ (Heller-Roazen, 2009: 179), the spectre of the pirate haunts the outer limits of the international legal order.

As such a constitutive outsider of the international, the pirate lives on, spectrally, as a ‘shadow figure’ (Heller-Roazen, 2009: 91), demarcating a zone beyond the line where exceptional rules apply and abject forms of violence are legitimized. Hence, if, as Hans Lindahl (2013: 155) suggests, ‘legal normality is the outcome of a process of normalization that has its inception in the abnormal’, then the spectre of the pirate demarcates such an ‘unorderable’ abnormality and the international ‘fault lines’ associated with it (Lindahl, 2013: 3–4). ⁸ It is considering this negative asymmetric counterconceptual position of the pirate, and its structural iterability, that one may think of a conceptual approximation between the (spectre of the) outlaw enemy of humanity and the American construction of the terrorist as an ‘illegal enemy combatant’ in the context of the war on terror (Heller-Roazen, 2009: 178). In this regard, Galli (2010: 184) suggests that making sense of ‘global war’ today requires returning to ‘previous models of the relationship between regular power and irregular violence in Western cultures’ and, most specifically, to the historical model of the ‘wars against pirates’. For Galli (2010: 185), there are enough traces and significant reasons for conceptually approximating the terrorist and the pirate, above all, because, ‘like terrorists, pirates are hostes humani generis, enemies of the human race’. Indeed, in 2005, John Yoo, one of the authors of an (in)famous 2002 memo of the US Department of Justice, ⁹ commenting on the ‘unlawful combatant’ category, referred to the pirate as being the original ‘illegal combatant’ who ‘didn’t deserve the protection of the laws of war’ (Yoo apud Mayer, 2005: 7–8). According to Ulmen (2007: 103–105), Schmitt would have agreed. More recently, in 2012, as Amedeo Policante reminds us, after the killing of fifteen suspected terrorists by a CIA drone strike, Yoo publicly complimented Obama, inviting the then American president to ‘declare terrorists “enemies of mankind”’ (Policante, 2015: 202). In Schmitt’s (2003: 123–124) parlance, this would not involve war, but rather ‘social pest control’ (Ulmen, 2007: 105).

Conclusion

In this article, I offered a reading of the concept of the pirate in Carl Schmitt inspired by Koselleck’s study on asymmetric counterconcepts and by Schmitt’s own critical engagements with the asymmetric counterconcepts of humanity and outlaw of humanity. Displacing the political towards the maritime limit of the modern international political world, I argued that the pirate in Schmitt marks a negative asymmetric counterconceptual position associated with an exceptional space, beyond the line, in relation to which one may also identify the negative asymmetric counterconceptual position of the outlaw enemy of humanity. In mapping this piratical position, I sailed away from the familial, symmetric counterconceptual pair of friend and enemy brothers, moving towards asymmetric counterconceptual relations structuring Schmitt’s conceptualizations of the political world. Rapidly passing through the asymmetric counterconcepts of enemy and foe and of real and absolute enemies, I anchored off the shores of Schmitt’s terrestrial interstate pluriverse in order to engage with Schmitt’s conceptualization of the intermediate category of the partisan. In his conceptual construction of the telluric partisan, I noted, Schmitt mobilizes the sea-categories of the privateer and the pirate, drawing a line between the political and the piratical, where the latter is synonymous with the unpolitical. Thus, I argued, the pirate and the piratical work here as the maritime negative asymmetric counterconceptual positions in relation to which Schmitt affirms the sovereign enemy as the conceptual epicentre of the political world order grounded on the separation and equilibrium between land and sea. In short, I argued that the pirate conceptually marks and works as a constitutive outsider of the international.

Hence, this article contributes to a mapping of the a/symmetric counterconceptual relations structuring Schmitt’s international political thought and, most specifically, to a better understanding of the negative asymmetric counterconceptual position of the pirate therein. In Schmitt’s world story of the tension between containment and intensification in political war, while the just enemy (justus hostis) represented the containment of war, the pirate, inseparable from the old formulas of ‘the common enemy of all’ (communis hostis omnium) and ‘the enemy of the human species’ (hostis generis humani), pointed to war’s intensification. In the modern epoch, declared an outlaw enemy of humanity with the British imperial ruling of the sea, the pirate marked the criminalization, and thus totalization, of enmity and war. At the same time, negatively invoking the enlightened and totalizing concept of humanity, the pirate legitimized a process of discrimination that turned humanity’s outlawed enemy into an inhuman unperson exposed to abject forms of violence. Schmitt was very much aware of this negating function of the concept of the pirate, having opposed the correlated international outlawing of enmity and war since Versailles. Indeed, having identified the symptomatic return of the pirate since Wilson’s indirect association of German U-Boats with piracy in 1917, Schmitt immediately reacted against the polemical use of the English concept of piracy in Nyon in 1937. The concept of piracy being, for him, the breach point of the international legal order, Schmitt critically noted that the international politicization of the pirate pointed to the (re)turn to a discriminating concept of war, signalling a more profound transformation of the world order.

The ocean being a constitutive outside to the landedness grounding the modern order of territorial sovereign states, the pirate marked the maritime outer limit of the international political world. However, as Schmitt observed, the move towards the air enabled by new technologies signified the end of the former relations between land and sea, and thus the collapse of the Eurocentric modern nomos of the earth. In this context of epochal transformations, I suggested, following Koselleck, the importance of rethinking the piratical traces that survive the historical singularity of the (ontic) pirate, that is, of rethinking the pirate’s negative asymmetric counterconceptual position, which, despite names and epochal changes, spectrally remains. It is considering this conceptual position, and its structural iterability, I suggested, that one may think of the approximation between the pirate and a particular American construction of the terrorist in the context of the war on terror. It is in this sense that, untied from the sea or any other element of the planet, the spectre of the pirate lives on, demarcating, as a shadow, that space of exception, beyond the line. In displacing the political and mapping the pirate’s position within Schmitt’s conceptual order, the significance of this article’s main contribution is to draw attention to a specific asymmetric counterconceptual structuring that marks the outer limits of ‘our’ international political world with the dehumanized negativity of its constitutive outsider.