Hannah Arendt reads Carl Schmitt’s The Nomos of the Earth: A dialogue on law and geopolitics from the margins

“Poor Schmitt: The Nazis said blood and soil—he understood soil. The Nazis meant blood” (marginalia: 211). ¹ This remarkable comment is one of a great abundance that Hannah Arendt wrote in the margins of her copy of Carl Schmitt’s The Nomos of the Earth in the International Law of the jus publicum Europaeum (1950). She read the work meticulously. ² The subterranean dialogues between Arendt and Schmitt have been rather well documented—their shared interest in the concept of nomos has attracted particular attention in recent years—but scholars so far have had to deduce this relationship from indirect evidence and similarities (see e.g. Jay, 1985; Kalyvas, 2009; Lindahl, 2006; Sluga, 2008). The marginalia from Arendt’s library have become publicly available in recent years, and these accounts can be enriched and enlivened now that we know what Arendt thought about Schmitt’s work. As it turns out, her opinions were extensive.

A broader study of the Nomos marginalia reveals a fascinating result: Arendt formed, but never published, a coherent and incisive critique of Schmitt’s narrative on geopolitics and international law. Arendt carefully follows and discusses his concept of nomos, the Ancient Greek word for law, which for Schmitt takes on the more specific definition of a concrete legal order, or in the geopolitical context, a world order. According to Arendt (marginalia: back pages), Schmitt’s theory in Nomos is damaged from the moment he answers the question “What is the source of law?” with “soil” (Boden). ³ His fixation on the political conquest of the soil is the thread that runs from his initial philosophical musings all the way through his historical analysis and critique of American hegemony. Conquest, for Arendt, is the key to the Schmittian nomos, and from her perspective, his geopolitical theory is intrinsically imperialist. Arendt, who, upon reading Nomos, had just published an account of imperialism in Origins of Totalitarianism (1951), is canny to pick up on a problem that has not been identified in contemporary critiques of the work.

Since the attacks of September 11th 2001, great interest in Nomos of the Earth has arisen, in particular for its assessment of unipolarity and American hegemony (see e.g. Axtmann, 2007; Benhabib, 2012; Hooker, 2009; Koskenniemi, 2004; Legg, 2011; Odysseos and Petito, 2007; Scheuerman, 2006; Slomp, 2009; Teschke, 2011). Most noticeably, an appropriation of Schmitt from the Left has gained strength in the last decade (see e.g. Agamben, 2005; Balibar, 2003; Buck-Morss, 2008; Cohen, 2004; Laclau, 2005; Mouffe, 2005; Negri and Hardt, 2000; Zizek, 1999). With the increase in popularity of Schmitt’s geopolitics have come critiques from many, including Benhabib (2012), Koskenniemi (2004), and Teschke (2011). ⁴ Yet, after countless critiques, Nomos has not lost all persuasiveness. ⁵ Even Jürgen Habermas (2003: 706), perhaps Schmitt’s most steadfast critic, echoes the latter’s position on the United States when he worries about a world ruled by “the unilateral, world-ordering politics of a self-appointed hegemon”. Arendt’s marginal critique, reconstructed in the next section, raises important questions for contemporary scholars who have turned to Schmittian geopolitics to critique American neo-imperialism, as scholars of the Left have done. These scholars will have to grapple a contradiction, exposed by Arendt, that lies at the core of Schmitt’s geopolitics, namely that he both embraces conquest and repudiates imperialism. My hope is that Arendt’s marginal critique, as well as her own theory of nomos, will provide novel material for such grappling.

The evidence in the marginalia also reveals surprisingly large interest from Arendt regarding the importance of justice as a guide for political action and judgment. Her published work noticeably lacks the same interest, and so this evidence may shed new light on how we should judge her often aesthetic approach to the political. ⁶ It may also call into question her supposed decisionism: ⁷ We see in her criticisms of Schmitt that she believed the legitimacy of the nomos should be founded upon principles and institutions that emerge from intersubjective processes of contract-making, a far cry from the existential decision. It should be noted that the commentary on justice does not weave a coherent narrative as do the remarks about imperialism, nor does Arendt define her conception of justice. Therefore, my approach below is to highlight these remarks as they relate to the imperialism narrative, and to interpret them in such a way that connects her concern with justice to her concerns about statelessness, her idea of the “right to have rights”, and her comments about international justice and tribunals for crimes against humanity.

In the last section, I explore the idea that Arendt’s marginal critique leads us to the alternative conception of nomos she formed in later published works, which is both influenced by and also a meaningful departure from Schmitt’s. Through a close reading of passages from various works and lectures, footnotes, and her intellectual diary (the Denktagebuch), I find that the Arendtian nomos escapes some of the aporias in Schmitt’s approach to international law. Without abandoning Schmitt’s insight that law as nomos provides an important stabilizing and bounding function for politics, Arendt’s conception, in its relationship to lex (the Roman term for law), embraces the human capability for making promises as well as the centrality of contract in founding. Based on a philosophy of intersubjective world-building, her nomos provides the foundation for a theory of international law and world order that is as necessarily democratic as Schmitt’s is violent. Furthermore, Arendt’s proposal allows for the possibility that political theory might develop an alternative to Schmitt’s geopolitics, one which is more amenable to a global politics in which diverse communities are preserved and boundaries can be contested.

Arendt’s critique of Nomos of the Earth

There are a number of reasons why Arendt’s critique sheds new light on Schmitt’s work. Not the least of these is that the two scholars converge on themes of interest, which helps elucidate the stakes of the dialogue: the two German theorists, both tracing post-war geopolitical problems back to their pre-war roots, come to tell radically different stories about issues like the demise of the nation-state. At one point, Arendt notes that “what I call the nation-state, Schmitt simply calls the state, and believes that states are in decline. Could be true” (marginalia: 112). ⁸ She realizes here that the crumbling of the Westphalian order Schmitt describes is not so far from her own themes in Origins of Totalitarianism. There, Arendt uses a language of fragility, remarkably similar to Schmitt’s in Nomos, to describe the changing world order. ⁹ While it is state sovereignty that is the great loss of the era for Schmitt, Arendt’s language of nationality and nation-state belies her greater interest in the catastrophe that had befallen peoples, especially minorities. Furthermore, for both, the Westphalian order crumbled at the turn of the 20th century, and imperialism played a central role in the catastrophe, although in different ways for each. ¹⁰ Where Schmitt glorifies the jus publicum Europaeum, calling it a “heroic epoch”, Arendt sees in its structure the seeds of its own undoing.

In Origins, Arendt focuses on the Westphalian order’s inability to assimilate the rights of minority groups, which ultimately explodes into the problem of statelessness after disaster is unleashed in 1914 and again in 1939. The structural problem reveals the necessity of the right to have rights, and future thinking about international law must be directed to the institutional prospects for enforcing this right, without which human dignity and plurality are impossible. It is in this context that Arendt corresponds with her mentor, Karl Jaspers, concerning the status of international criminal tribunals. ¹¹ Where Schmitt’s concerns about the nomos focus on the criminalization of war and loss of equal sovereignty among states, Arendt is instead concerned with the juridical relations among persons, and with those deprived of the protective walls of a nomos. When we read Arendt’s marginal critique, it is important to keep in mind how Arendt might be envisioning the nomos differently.

To further contextualize Arendt’s critique, it is necessary to consider the various narratives in Schmitt’s writings on international law and geopolitics. Schmitt’s turn from constitutional politics to geopolitics in the late 1930s was accompanied by the search for a fundamental philosophy of law grounded in the soil. Nomos of the Earth (1950) is the capstone text of this project. In it he uses “concrete order thinking” to uncover the spatial orientation that underlies law. This normative order is what he calls the “nomos”, and to be legitimate it must combine order (norm) and orientation (soil). World order is founded upon the “infinite justice” of the soil. Schmitt’s goal is to show that law, when tied to the concreteness of land and territory, avoids the abstract universalism of liberalism.

Nomos of the Earth offers three narratives of interest. The first narrative, regarding the origins of law, appears early in the text and employs a quasi-phenomenological, etymological method (Schmitt, 2006: 42–49, 67–83, 324–355). Arendt calls this Schmitt’s “pseudo-ontological” method (marginalia: 197). Here, Schmitt renders an account in which law is established through the primordial relationship of a people to the soil—through conquest, the drawing of borders, and the distribution of land. The second, historical narrative focuses on the virtues of the world order that existed from approximately 1648 to 1885. Under the jus publicum Europaeum, the relationship of European states to one another was one of equality, and sovereigns adhered to the conception of one another as the just enemy, justus hostis. Equal sovereignty and bracketed warfare on the continent were enabled by the airing of hostilities in the unlimited spaces of the colonies. In the final narrative, the breakdown of the jus publicum Europaeum makes way for an age in which international law is divorced from territoriality. Schmitt criticizes the rise of America as the disingenuous champion of liberalism, and the hegemon at the helm of a disoriented unipolar world order.

The first clear line of critique in the marginalia runs against Schmitt’s first narrative, his soil-based account of legitimacy. Schmitt makes three moves to uncover the origins of law. First, justice is born of the soil: “the fertile earth contains within herself, within the womb of her fecundity, an inner measure.” (Schmitt, 2006: 42). Secondly, the legitimate order of life emanates from the first human demarcations of the earth: “soil that is cleared and worked by human hands manifests firm lines, whereby divisions become apparent.” (Schmitt, 2006: 42). Finally, politics is born in the moment when boundaries allow for friend and foe to be distinguished from one another: “Third and last, the solid ground of the earth is delineated by fences, enclosures, boundaries, walls… Then, obviously, families, clans, tribes, estates, forms of ownership and human proximity, also forms of power and domination, become visible.” (Schmitt, 2006: 42). These primordial moments of law and politics are rooted in the earth. They correspond to the creation of the nomos, whose etymological root nemein means both to take/appropriate (conquer), as well as divide/distribute (Schmitt, 2006: 326).

Arendt finds these often overlooked passages in Nomos of the Earth to be central. She writes that the problem is, “where is the source of the law?” ¹² (marginalia: back pages). Schmitt’s answer is that law springs from the soil in the moment that it is captured, cultivated, and bounded. Arendt marks many points in the text where this assertion is made, and decides that Schmitt is a practitioner of blood and soil theorizing, though a unique sort which gravitates towards soil rather than blood. ¹³ In this, Schmitt misunderstood that Nazi ideology was, in the first place, racist, not geopolitical (marginalia: 211).

The real problem with a soil-based account of legitimacy, however, is that it ignores the intersubjective processes of lawmaking. Where Schmitt claims, “nomos is the measure by which the land in a particular order is divided and situated,” Arendt (marginalia: 40) responds with a question: “Towards what is the measure oriented? Nemein accords each his own—not in relationship to the soil, but in relationship to the people who settle it.” ¹⁴ Schmitt’s focus on soil excludes an understanding of the moments of contract and constitution that mark the founding of a polity. Against Schmitt, the Arendtian legal order springs from actions among men.

Implicitly, Arendt accuses Schmitt, in his answer to the question “what is the source of law?”, of not understanding the relationship between law and politics because he does not understand the nature of the political. Plurality, the primary condition of politics for Arendt, is absent from Schmitt’s nomos. She complains repeatedly that people, human beings, are cut out of his account. ¹⁵ Instead, Schmitt imposes his own concept of the political, the distinction of friend and foe, onto the demarcations of the soil. The earth becomes a battleground, and the polity a vessel for conflict.

The problem of the political aside, Arendt also finds Schmitt contradicting himself regarding the source of law at a number of points. For example, Schmitt ignores the historical fact that in newly founded colonial regimes, a primary site of land-appropriation, most law did not arise from the soil. One of the primary exports from Europe to the colonies was law. The European-Americans, for example, brought much of their legal code with them, which Schmitt admits and Arendt (marginalia: 63) makes note of.

Schmitt contradicts himself because, out of prejudice against the legal positivism of scholars such as Hans Kelsen, he mistakes the importance of promising and contract in founding a legal order. Arendt (marginalia: 308) emphatically notes that contract (Vertrag) does not have even one entry in the index, and goes on about Schmitt’s “typical inability to grasp contract, which derives from promising” (marginalia: back pages). ¹⁶ Interestingly, she notes that “the only German, who understood this was Nietzsche” (marginalia: back pages). ¹⁷ Entries from the previous year, 1951, reveal extensive meditations on promising, where Arendt (2002: 135–143) relates her reading of Nietzsche’s Genealogy of Morals to her growing interest in the American founding. In these entries, she makes a jump, to be fleshed out in later texts, from the idea that promising is the central moral-political act in the unpredictable world of human affairs, to the notion that the American founding accomplished such an act in a non-sovereign fashion. Arendt’s frustration with Schmitt on these subjects becomes clear because she makes marginal notations every time he mentions contract (Vertrag) or constitution (Verfassung). It was his inability to grasp the importance of contract, and failure to recognize the intersubjectivity of the political, that gave him over to a muddled “pseudo-ontology” of the soil (marginalia: 197). For all his talk of concreteness, Arendt finds Schmitt to be a terrible generalizer. Where he criticizes legal positivism for its “maddening abstractions” and “empty normativist generalizations”, Arendt responds that “in their place, Schmitt loves legal-technical generalizations [emphasis mine]” (marginalia: 166). ¹⁸

Arendt’s own thoughts on contract and founding culminate years later in On Revolution. Andreas Kalyvas (2009) points out that the Arendtian version of founding retains the component of natality but does not arise ex nihilo: legitimacy is not established in a vacuum. Instead newness comes about in the unpredictable moment of coming together, of action driven by a principle. Arendtian founding is not lawless or pre-political. A lawless founding devolves into bloodshed because of “the violence prowling behind any act of pure rupture” (Kalyvas, 2009: 225). Her theory of the political process in which the ties of civil society culminate in a contract (a constitution) contains a normative core: a commitment to freedom and plurality. She reads Schmitt’s theory as lacking such a normative core. She jots down, “This de-substantialization leads to complete relativism, which without a contract to bind it … remains formal-technical. In this situation any content becomes acceptable.” ¹⁹ (marginalia: back pages). She accuses him of contentlessness. ²⁰ By grounding all law in the soil, he disregards the content of laws and their orientation (Richtung) towards the people. Where Schmitt speaks of land-division and the establishment of the nomos, Arendt remarks that he is attempting “to remove justice from the content of the law” (marginalia: 49). ²¹ Contentlessness makes room for injustice.

Thus the contentlessness of Schmitt’s nomos becomes a misunderstanding about the importance of justice in politics, according to Arendt. The most sustained subject of the marginalia is Schmitt’s inability or unwillingness to comment about right and wrong. She notes in one instance that “The question of right and wrong is completely disregarded” (marginalia: 183), ²² and complains elsewhere that, for Schmitt, “every question of justice dissolves into ‘dogmatism’.” ²³ (marginalia: 128) Arendt disdains the fact that in Schmitt’s work, questions of political evil—ones that should concern justice—become mere matters of conscience (marginalia: 268). Such issues of evil, e.g. colonialism and military aggression, are eclipsed in Schmitt’s vision of justice as obedience to the authority that emanates from a proper nomos.

That Arendt was so disturbed by Schmitt’s indifference to justice speaks against the accusations made against her in the same vein. It is not true that Arendt’s vision of the political was aesthetic to the exclusion of justice (Kateb, 1983). Instead, here we find Arendt affirming the importance of justice and a substantive notion of the political, one that is committed to plurality and freedom. This is a far cry from the version of Arendt that has been presented in the past as converging with Schmitt in her embrace of “decisionism” (Jay, 1985; Wolin, 1992).

Arendt’s concern about justice comes out most vehemently in her comments about Schmitt’s history of colonialism. In this account, some land-appropriations established a new nomos while others did not. Schmitt is interested in understanding the land-appropriations that constituted a new nomos; he is not interested in the wrongs that resulted from them. Arendt responds firmly: “that jurists do not know what justice is does not give Schmitt the right to equate injustice and law-making.” ²⁴ (marginalia: 50). Arendt wants him to admit that these land-appropriations are unjust, are the original sin of a new order, instead of equating them with law.

For Arendt, the land-appropriations of the imperialist era (1884-1914) resulted from the devastating principle of expansion for expansion’s sake. The principle of consent did not travel with that of expansion, and European nations took the world under their rule with the violent force of conquest. In the episodes of colonial rule, Western moral principles and political institutions were distorted. According to Arendt, it was through imperial conquests that modes of domination crystallized in form, and the string of events that would eventually collapse the Westphalian order was thus set into motion.

Having recently published this account in Origins, Arendt takes a particularly hard line against Schmitt on the subject of conquest. Conquest, Arendt finds, is the central component of Schmitt’s nomos. Schmitt uses the term land-appropriation (Landnahme), which Arendt notes is a euphemism for conquest (Eroberung). In response to Schmitt’s claim that Nomos of the Earth is “promised to the peacemakers” (2006: 39), she writes, “conquest” is “a word that the alleged ‘peacemaker’ must avoid.” (marginalia: 16). ²⁵ Schmitt theorizes that because land-appropriation unites order and orientation, it both constitutes the nomos and is its greatest expression. Schmitt tells us that “at [the] origin of land-appropriation, law and order are one” because “where order and orientation coincide, [law and order] cannot be separated” (Schmitt, 2006: 81).

Land-appropriation bridges the gap between Schmitt’s “pseudo-ontology” regarding the source of law and his historical account of nomoi. He writes, “not only logically, but also historically, land-appropriation precedes the order that follows from it [emphasis mine]” (Schmitt, 2006: 48). In conversation with Hans Kelsen, Schmitt writes, “Initially, there was no basic norm [Grundnorm], but a basic appropriation.” (Schmitt, 2006: 345). Because of this explicit connection, according to Arendt, the nomos, philosophical as well as historical, is based on the idea of land-appropriation, and is thus imperialist. Later in the work we find Schmitt criticizing American “imperialism”, and Arendt is quick to pick up his contradiction.

Land-appropriation occurs primarily through conquest. Where Schmitt (2006: 46) writes “In every case, land-appropriation, both internally and externally, is the primary legal title that underlies all subsequent law”, Arendt (marginalia: 17) remarks “conquest = colonization”, ²⁶ meaning that Schmitt has based all legitimate claim to territory as well as the domestic law, whose very possibility is grounded in territorial rule, on colonization. Mika Ojakangas (2009: 39) points out that Schmitt takes the biblical story of Joshua as paradigmatic example of land-appropriation: “By expelling Ken’ites, Canaanites, and other peoples from their Land, Joshua lays the foundation for order and orientation, and, through destruction and merciless slaughtering, founds nomos.” The farmer that tends to the soil in Nomos of the Earth is replaced by the autochthonous warrior in the later Theory of the Partisan (1963), a shift that reveals Schmitt’s tendency to favor violence as life-affirming.

Conquest also makes its way into Schmitt’s theory via what Arendt deems a misinterpretation of the word nomos. We know, because of her later adoption of his etymology, that Arendt agrees with Schmitt that nomos comes from the word nemein and contains within it two moments: acquisition (nemein as nehmen—to take) and division (nemein as teilen—to divide). ²⁷ Schmitt writes, “with any land-appropriation there is in some way also a division and distribution of the seized land. But the division is only a consequence of land-appropriation.” (Schmitt, 2006: 80–81). Thus, for Schmitt, appropriation precedes division, and this is the key point with which Arendt disagrees. Land-appropriation, in his interpretation, is tantamount to acquisition or the establishment of territorial right. Division, which Arendt envisions as the constitutional moment of establishing the right of mine and thine, comes second for Schmitt. In a key marginal note, Arendt writes:

Land-capture or occupation or conquest is obviously the sine qua non of land-division. But questions of right first arise with division, which accords each his own … questions of right come about during the divvying up of the New World only once it comes to division … before the acquisition comes the division and not conquest! ²⁸ (marginalia: 108).

For Schmitt to say that land can be acquired and possessed through a pre-constitutional appropriation—without an established civil society and state to sanction the right to property—puts him in contradiction with Kant’s (1991) theory of provisional vs. conclusive property acquisition in the Rechtslehre. Thus, one possible subtext of Arendt’s disagreement with Schmitt about acquisition is that he has rejected the Kantian insight where Arendt embraces it. For Arendt, the acquisition of land is not possible without the prior constitution of the polity through contract.

Arendt makes clear in her marginal comments that the ordering of acquisition before division not only conflates the origin of property rights and territorial acquisition, but also ousts the contractual moment that should be at the root of founding a polity. The constitution of the polity as a territory and the individual possession of land within it must follow a political compromise. In such an understanding, acquisition can only take place after land-appropriation is followed by the compromises of division, which she understands as the constitutional moment. In Schmitt’s case, where possession comes before division, we are dealing with brazen conquest. Thus when Arendt later picks up Schmitt’s language in defining nomos herself, she makes sure to reverse acquisition (possession) and division (distribution): “The Greek word for law, nomos, derives from nemein, which means to distribute, to possess (what has been distributed), and to dwell.” (Arendt, 1998: 63).

The reversal of division and acquisition in the conception of nomos connects the premises of Schmitt’s philosophical musings with the other arguments in Nomos that have been renewed in contemporary political theory, even by his critics. If we follow Arendt in believing that Schmitt’s political theory is instrinsically imperialist because it is based on the affirmation of conquest, then we must reconsider his historical account. The best place to begin is with the concept of res nullius, and its relation to Landnahme.

Schmitt uses the concept “free” spaces instead of res nullius, a legal term referring to a thing with no owner. In the marginalia Arendt assigns the term res nullius to the vast tracts of “free” land in the New World, which played a key role in the establishment of the jus publicum Europaeum. According to Schmitt, res nullius acted as a safety-valve for power-hungry European powers, who could air aggression in the colonies instead of the continent. He claims that free spaces, open to colonial venture and new land-captures, enabled the bracketing of war within Europe. Arendt shows alarm, and takes note wherever Schmitt says “freier Raum”, marking the margins with exclamations. Furthermore, the mechanism of the safety-valve remains vague in the text. Schmitt (2006: 187) assumes that powerful states are naturally and constantly driven to acquire new land, that they are naturally imperial, and if given no open spaces to practice acquisition, they will unleash a disaster. If there is no space in Europe to appropriate, the great powers must move to the New World.

Arendt’s marginal comments in the sections on the safety valve reveal a problem which scholars have missed. Schmitt’s conception of the pluriverse unfolds from a historical argument about the balance of European powers, which rests on the violence of Landnahme and entails imperial ambition. When, later in the work, Schmitt tries to play down the violence of power-balancing, Arendt responds, “see above where he shows that there is no such thing as a free, background-less balance of power.” ²⁹ (marginalia: 161). By this I take Arendt to mean that any balance of power, according to Schmitt, requires, in the background, that the great powers have a chance to air their violent ambitions somewhere. Here Arendt is more provocative than conclusive, but her marginal comments do raise an important question: What are the global, structural preconditions of a Schmittian world order? Arendt suggests that the components of power-balancing, be they nation-states or great-spaces (Großräume), can’t be anything but imperial: the balance requires land-appropriations and colonial occupation (either economic or by military force).

Violence in the colonies comprised the constitutive exterior of the European-centered nomos until it crumbled around 1900. Yet Schmitt blames the US (and Great Britain) for its descent, to Arendt’s disbelief. She is astonished that Schmitt does not blame the crumbling of the jus publicum Europaeum on imperialism itself, as she does in Origins of Totalitarianism (marginalia: 195). She goes further, repeatedly calling Schmitt’s thinking imperialist, a word he himself reserves for America (e.g. marginalia: 188, 195, 211, 268, 271). Schmitt does not understand, according to Arendt, that the rise of America is the direct result and continuation of European imperialism. When he writes about European civilization, Arendt reminds him that it is a civilization “to which the Americans belong!” (marginalia: 201). ³⁰ She mocks the idea that Europe, or its nomos, was destroyed by America (marginalia: 232). Furthermore, American power is “a consequence of a European land-capture” (marginalia: 261). ³¹ Arendt writes,

the paradox is completely apparent, that on the one hand the land-capture of America enabled the European geopolitical order to achieve balance, while on the other hand, through its colonization by Europeans, America had to call this order into question. ³² (marginalia: 163).

In order to respond to the political challenges of American hegemony, Schmitt turned to the idea of Großräume, or geopolitical power blocks. The power of the United States might be balanced out in a “pluriverse” of Großräume, and these entities could develop a relationship of equality to one another that would allow a reinstatement of justus hostes relations. The pluriverse replaces positive international law with order and orientation. In the end, Schmitt has no problem with American imperialism per se, only with unipolarity.

As we have seen in this section, Arendt rejects, must reject, Schmitt’s geopolitical theory because she connects, through the concept of conquest, Schmitt’s philosophical musings to his historical analysis and critique of America. She also rejects his suggestion of Großräume because, according to his own analysis, the historical precondition of balanced blocks of power is the conquest and imperial control of “free space” by powerful states. Where he writes that, at a certain point, there was no stopping the decline of the jus publicum Europeaum, she responds, “Why? Only in the case that one holds on to space (territory) without paying attention to peoples. Over and over: [Schmitt] cuts out people [from his account].” ³³ (marginalia: 200). Schmitt’s insistence on the primacy of the soil leads him in a direction which Arendt utterly rejects. The concept of Landnahme, in which acquisition comes before contract, is nothing other than conquest, and thus she finds the Schmittian nomos to be held together by conquest and colonization.

So much is Arendt’s conclusion. Contemporary scholars have separated Schmitt’s notion of the political and the pluriverse of powers from his authoritarian leanings. A close reading of Arendt’s marginal dialogue with Schmitt suggests that we should re-evaluate the connection between Schmitt’s philosophical ideas and his historical views. One conclusion that can be drawn from this dialogue is that Schmitt was in contradiction with himself regarding conquest and imperialism. In The Concept of the Political, Schmitt (1996: 33) claims politics “neither favors war nor militarism, neither imperialism nor pacificism.” At the same time, the politics of any given nomos of the earth are necessarily grounded in conquest, and imperial conquest, according to Arendt. The marginalia does not itself provide an answer about whether or not updated versions of Schmittian geopolitics carry in them Schmitt’s supposed imperialism. Instead of judging these updated Schmittian theories, I suggest in the next section that another option is to look to Arendt’s own continued engagement with Schmitt and her development of an alternative theory of nomos.

Arendt on nomos and lex

Arendt’s philosophical writings on law were not systematic. ³⁴ They have been understudied, and I think, undervalued. ³⁵ In this section I inspect Arendt’s published musings on the concept of nomos, which were deeply influenced by Carl Schmitt. ³⁶ Her version of nomos retains the desired “concreteness” of the Schmittian paradigm, based on his recovery of the pre-Socratic meaning of the term as a city-wall, but adds insights on founding and contract in a move to avoid the violence and primordialism for which she criticizes Schmitt’s theory.

As we saw above, Arendt revises Schmitt’s definition of nomos so that division (nemein as teilen) precedes acquisition (nemein as nehmen) in importance. Thus the contractual moment of setting up a nomos is a central component of Arendt’s conception of law, and in order to emphasize its importance she poses nomos in productive tension with the Roman notion of law: lex. Arendt’s theory of law reflects a duality that lies at the heart of law, in which law results from both making/world-building and (intersubjective) action.

Arendt’s comparison of nomos and lex is in some sense an extension of her phenomenology of the human activities (action, work, and labor) and their relationship to her conception of world, as laid out in The Human Condition. Of the world, writes,

It is related … to the human artifact, the fabrication of human hands, as well as to affairs which go on among those who inhabit the man-made world together. To live together in the world means essentially that a world of things is between those who have it in common, as a table is located between those who sit around it. (Arendt, 1998: 52)

Action takes place against the backdrop of this world, is embedded in its web of narratives, while work constitutes the world, in both its materiality (as institutions and public spaces) and meaningfulness (as a common world).

However, as we will see with the relationship between lex and nomos, it is often difficult to draw a sharp separation between action and work, which are inextricably intertwined in Arendt’s account. She writes:

Relationships established by action, in which the past lives on in the form of a history that goes on speaking and being spoken about…can exist only within the world produced by man, nesting there in its stones until they too speak and in speaking bear witness, even if we must first dig them out of the earth. (Arendt, 2005: 161)

For Arendt, politics takes place in a worldly second nature, which is a precondition of the public realm. At the same time this human artifact, i.e. the world, is meaningless without the action that it houses. “Without being talked about by men and without housing them, the world would not be a human artifice but a heap of unrelated things to which each isolated individual was at liberty to add one more object.” (Arendt, 1998: 204). Action needs a world to orient and house it, and the products of work must contain the affairs of men in order have meaning and persist.

The mutual dependence of action and work may appear counterintuitive when considered in light of Arendt’s vehement rejection of the substitution of making for action in politics, and it is true that she often laments the “productionist paradigm” of politics (Villa, 1995), in which action is replaced with the predictability of work, and freedom (no-rule) is replaced with domination (rule). Nevertheless, Arendt concedes the importance of work for bounding action while simultaneously embracing a radically free, non-sovereign politics. She believes that the durability of political space is a sine qua non of politics. Durability, in turn, depends on the role of law in its capacity as nomos, which lends it the ability to bound and hedge politics, to root, guide, and make permanent the actions of people. When Arendt reads Carl Schmitt’s Nomos, while she has major contentions, she finds his recovery of the pre-Socratic meaning of nomos to be invaluable. The original meaning of nomos as a city-wall allows law to bound and guide politics without replacing it, without equating lawfulness and rule with freedom. Why, then, does Arendt insist also on recovering the Roman conception of law as lex, which Schmitt rejects as mere legality? ³⁷ While lex and nomos do not neatly map onto the activities of action and work, they have a mutual dependence and inextricability that is similar to the preceding discussion of the two activities. The functions of lex complete the Arendtian nomos, and indeed, each term is conceptually incomplete without the other; it is for this reason that Arendt recovers lex alongside nomos.

The word lex derives its original meaning from the idea of an “intimate connection or relationship” (Arendt, 2006: 179); later it comes to mean contract. The original meaning of lex as a bond is important for Arendt, and she often refers to the relationships established by lex as rapport. In her work “Introduction into Politics”, she makes the legal meaning of lex more explicit. Roman lex makes intersubjective relationships among citizens and peoples the basis of law. Through lex, political relationships are extended, which lends well to understanding law in the context of international affairs. The role of lex in international politics is opposed to the earth-bound nomos. Furthermore, Roman lex understood in terms of contract fits with Arendt’s belief in promising as a force that binds action such that citizens have “the capacity to dispose of the future as though it were the present” (Arendt, 1998: 245). The disadvantage of Roman lex is its boundlessness: it multiplies the effects of action by institutionalizing connections regardless of their viability.

Law as nomos, on the other hand, entails a connection between the earth and politics; this interpretation is one she picks up from Schmitt. Arendt’s (1998: 63) etymological exploration of the term nomos, which we encountered above—“nomos, derives from nemein, which means to distribute, to possess (what has been distributed), and to dwell”, bears such striking resemblance to Schmitt’s that his influence cannot be mistaken: “The Greek noun nomos comes from the Greek verb nemein … The first meaning of nemein is nehmen [to take or appropriate] … Thus, the first meaning of nomos is appropriation. The second meaning of nemein is teilen [to divide or distribute].” ³⁸ (Schmitt, 2006: 326).

Because of its concreteness as a territory or a jurisdiction, nomos acts as a counteragent to the boundlessness of lex. Ardent explains,

What the Romans did not know … were precisely those characteristics inherent in action that had inspired the Greeks to set limits to action by means of the nomos … Because by its very nature action always creates relationships and ties as it moves into the world, there is inherent in it a lack of moderation and what Aeschylus called an ‘insatiability,’ which can be held in check only by nomos, by law in the Greek sense of the word. (Arendt, 2005: 186).

Nomos responds to the “calamities of action” in a way that promising and forgiveness cannot. Forgiveness is ex post facto and promising has the problem of lex, overextension and empire. Arendt therefore turns to the concept of nomos as a source of durability that she otherwise does not have available in her theory. The durability of law as nomos sustains the world against the otherwise fleeting nature of politics: “Thus the nomos becomes a counterforce to the transience … of the spoken word and to the fleeting moment of the accomplished deed.” (Arendt, 2005: 187).

One of the most important aspects of a nomos is its spatial dimension. ³⁹ The spatial conception of nomos provides Arendt with a “topographical figure of speech” (Benhabib, 2000) for the space of appearance. It also provides the boundary necessary for freedom: “Before men began to act, a definite space had to be secured and a structure built where all subsequent actions could take place, the space being the public realm of the polis and its structure the law.” (Arendt, 1998: 194). Politics requires a nomos because without it the space of action would have no structure, and no world (Arendt, 2005: 189–190).

The need for such space is echoed in Arendt’s political writings. In Origins of Totalitarianism she writes, “The fundamental deprivation of human rights is manifested first and above all in the deprivation of a place in the world which makes opinions significant and actions effective.” (Arendt, 1976: 296). As a topographical metaphor for the space of appearance, nomos comes to be a precondition for freedom: nomos is the jurisdiction within which a democratically constituted rule can come about. In On Revolution Arendt (2006: 267) writes, “Freedom, wherever it has existed as a tangible reality, has always been spatially limited…”.

What, then, does law as nomos, as the structure which houses political action, look like? Arendt never formalized the connection between her phenomenology of law and her historical political science, but we might draw our own conclusions. First of all, the nomos of a political community is a territorial jurisdiction, which is the modern instantiation of the city-wall. But more than just territory, the nomos is also comprised of the durable institutions that result from the intersection of work and political action. Political institutions are also a legacy of the bonds extended between men into lasting institutions, and so lex plays an important part as well. Thus constitutions, because they delineate institutional capacities, are the product of both nomos and lex. Furthermore, laws which bound the community, primarily through citizenship rights, are the product of nomos. In the Arendtian account, politics and work are inextricable, though not the same enterprise, and a nomos is the result of both. Thus borders and citizenship policies may be concrete, but, normatively, they should also be the intersubjective product of non-sovereign politics. The nomos should stay open to contestation in the future. The world and the nomos are rooted and concrete, but not static, in the Arendtian conception.

In order for the nomos to be concrete, but not static, it must be balanced out by lex. This point is helpfully illustrated by Roy Tsao, who shows that the tension between poiesis and praxis in Arendt’s work revolves around the problem of durability. When Arendt (1998: 198) writes, “The organization of the polis, physically secured by the wall around the city and physiognomically guaranteed by its laws—lest the succeeding generations change its identity beyond recognition—is a kind of organized remembrance,” Tsao (2002: 114) believes that she is expressing worry in the qualifying statement “lest the succeeding generations change its identity”. She is worried that the original creators of the nomos will secure it against changes that will undoubtedly occur in future generations. If Tsao is right, then Arendt believes that nomos has to be balanced by the transformative potential of lex. Through lex, political actors can re-interpret, contextualize, and transform the rooted nomos, they can re-interpret the founding act.

Focusing on civil disobedience, Verity Smith (2009) has come to a similar conclusion, i.e. that Arendt offers resources for thinking both about stable institutions (such as constitutions) as well as the activities that can transform such institutions. Smith suggests that Arendt’s theory of civil disobedience might be seen as the mode of politics, a type of “agonistic constitutionalism”, that bridges the gap between her language of durability, hedges, and boundaries and her insistence on radically non-sovereign and unpredictable politics. Similarly for this discussion, we can see that when combined with lex, the stable nomos is compatible with the non-sovereign freedom inherent in action. This is why, taken together, lex and nomos provide a theory of law amenable to boundary-contestation. ⁴⁰

Through the notion of durability, Arendt expresses the idea that political units must be able not only to establish spaces for freedom, but ones that exist through time (Lindahl, 2006: 884). The institutions, jurisdictions, and structures embodied in the nomos provide a foundation for the continuity of a community through generations. Thus Arendt’s true aim with the spatial concept of nomos is to establish a temporal guarantee of freedom. With this incredibly elusive conception of nomos, Arendt seeks a way to sustain a durable world in which politics may have an ever-contestable repository of cultural memory. Following Arendt, we can argue that a commitment to the durability of communities is also a commitment to cultural diversity and the plurality of communities in the world.

A nomos in this conception is neither a form of domination nor primordial because it is a product of democratic politics; it is therefore neither the spoils of a conqueror, nor the soil-based identity of a people, as it is for Schmitt. For Arendt, the intersubjective lawmaking of lex is always intertwined in the moment of building a world and a nomos. Thus we find, against the common understanding of Arendt, that political freedom is not just a result of action, and its condition, natality. It is also a product of work, and its condition, worldliness. While work without action results in domination in the public realm, action without work is unbounded, ephemeral, and worldless.

Both Arendt and Schmitt find for the nomos an important role in preserving space for the political. Yet, because of their antithetical views on violence—Arendt excludes violence from her conception of political power where Schmitt embraces it with his friend vs. foe criterion—the resulting conceptions of nomos diverge greatly. While the nomos provides a temporal guarantee of political freedom in Arendt’s theory, for Schmitt it serves the purpose of balancing the international order.

Another difference between Arendt and Schmitt brings us back to her reversal of division and possession in Schmitt’s definition of nomos. In this interpretation, the contractual moment of law is primary to the moment of ownership in a founding for Arendt. There is more evidence for this reversal in the Denktagebuch, from an entry that was written not long after Arendt‘s reading of Nomos of the Earth. Here, Arendt explains that the sanctioning of the “field stone” is preceded by contractual relationships between men, and that such a sanctioning requires laws: “All laws between men (without God) were originally a sanctioning of the fieldstone, of border-fences. Laws are required for a wall to become a border-fence.” ⁴¹ (Arendt, 2002: 338). In Arendt’s account of law’s origin, i.e. founding, we find that her commitment to intersubjectivity and plurality appears in the form of “laws between men” being necessary for the erection of political boundaries. Laws originate in relation to the border-fence; they do not derive their legitimacy from it. This accords with my interpretation of lex and nomos be combined in such a way that we should view the nomos as the product of making and intersubjective democratic politics. ⁴²

Still, Arendt’s theory does not address the problem that, empirically, founding often follows on the heels of land-appropriation, secession, or border-conflict. There is evidence that she was aware that founding is the outcome not only of a contract within a community, but also negotiations or conflicts with neighbors. In the marginalia, she muses, “perhaps all justice rests on an original injustice, an original sin.” ⁴³ (marginalia: 50). Elsewhere, she admits that “law … has something violent about it in terms of both its origins and its nature” (Arendt, 2005: 181). Arendt did not, however, incorporate the violence she worried might lurk in the founding moment into her normative theorizing, which she saw rather as a philosophical trap that Schmitt had fallen into. If Arendt’s brief admissions here are unsatisfactory, posing a question she cannot answer, we will have to look elsewhere for assistance. This could be seen as an opportunity to bring Arendt into conversation with current scholarship addressing the difficult relationship between peoples and territorial right (e.g. Espejo, 2014; Miller, 2012; Nine, 2008; Stilz, 2011; Ypi, 2012).

Towards an Arendtian geopolitics

In the beginning pages of Nomos of the Earth, Schmitt expresses hope that it will be the peace-makers who will inherit and control the world. ⁴⁴ Arendt responds caustically: “How should they, if right is based on conquest?” ⁴⁵ (marginalia: 20). This back-and-forth captures well the dialogue between the two. Schmitt’s conceit of having a peace-seeking theory is called into question by Arendt’s critique. According to her, Schmitt’s work, including its attack on American imperialism, is imperial at its core; it is an apology for conquest and a delusional fairy-tale about the “heroic epoch” of the jus publicum Europaeum.

Though Arendt and Schmitt share a common concern with the “comity of nations” (Arendt, 1976), they diverge widely when it comes to the concept of nomos. Against those who have found similarities in the writings of Arendt and Schmitt, this study has used Arendt’s own words to show her repudiation of his theories. I have also tried to show that Arendt’s published works give us the materials to create an alternative nomos, from which we might draw our own conclusions.

Arendt’s conceptions of nomos and lex, I have suggested, provide the foundation for a conception of world order and law in which legal boundaries and jurisdictions are negotiated through intersubjective, democratic processes of political action (lex) and world-building (nomos). In order to come to this insight about the Arendtian nomos, the conception had to depart from Schmitt’s in three important ways:

In Arendt’s understanding of nomos, law does not spring from the soil. The law springs from the people—from intersubjective processes of action and fabrication. The people, though rooted, do not have a primordial relationship to the soil.

By reversing the order of acquisition and division in the definition of nomos, Arendt rejects Schmitt’s embrace of conquest in favor of contract, embodied in the concept of lex.

Arendt’s conception of nomos is a recovery of the idea that durability is a precondition for politics. Thus Schmitt’s focus on the violence of territorial politics is replaced with a normative commitment to freedom and plurality.

Following Arendt, the most important matter of law should be the durability of political communities through time. In the context of international law, this turns our attention to smaller jurisdictions: regions, localities. An Arendtian geopolitics would concern itself with the rooting of international law and the empowerment, durability, and opening of political space in the periphery. Furthermore, lex is a tool for establishing comity among nations. The importance of lex suggests the possibilities that become available if we take diplomacy seriously with regard to political problems ranging from the displacement of the stateless to territory-defying environmental crises. Against Schmitt, Arendt’s critique of American “empire” would not be aimed at unipolarity as such, but against America’s unwillingness to engage in lex with the world community and against its careless foreign policies that have threatened the durability of communities and diverse nomoi. Furthermore, her marginal comments about justice should and can be coupled with her writings which address the conditions of human plurality, dignity, and politics in the post-Westphalian world. Thus, an Arendtian geopolitics turns our attention to the juridical relations among persons in the world, it turns our gaze to the stateless, to refugees, and to those deprived of the protective walls of a nomos.