The International Political Thought of Carl Schmitt: Terror, Liberal ...

Introduction 7
According to Schmitt, this is the major achievement of Westphalia: the interstate
order which existed in Europe until 1914 had sought, through its international
law, ‘to prevent wars of annihilation, i.e. to the extent that war was inevitable, to
bracket it’ (ibid.: 246). It did not, on the contrary, seek to end war as such, to
abolish or banish it from its international relations since it implicitly recognised
that ‘any abolition of war without true bracketing resulted only in new, perhaps
even worse types of war, such as reversions to civil war and other types of wars
of annihilation’ (ibid.). It rather sought to find ways in which to gauge the opponent’s
strength, usually by striving for appropriation of lands in the New World
or by fighting limited wars on European soil, and by recognising the opponent as
an enemy on equal grounds – as a justus hostis.
The development of the notion of justus hostis was the key to such an
achievement. The concept of an ‘equal and just enemy’ evolved alongside the
consolidation of the modern state. With the predominance of this type of political
entity and the weakening of the moral authority of the Church, war became
‘non-discriminatory’, that is, divorced from substantive causes of justice or justa
causa. Since war was the means by which land could change ownership status,
‘war came to be judged in terms of its outcome’ and became a form of political
relation among states (ibid.: 100). Any enemy that had the form of a state was a
just enemy and war could be waged against it. This development enabled the
avoidance of wars of conviction, creed and religion (that is, based on substantive
issues of justice) which had historically caused tremendous destruction, and of
possible annihilation of enemies. For Schmitt, whose belief was that war was an
inevitable part of political life, this regulation of war without substantive cause
meant a ‘rationalization, humanization and legalization’ of war. Regarding an
enemy as both a just and an equal partner meant that peace could be made with
that enemy – his ultimate destruction was not sought, but conflict with him was
possible and regulated.
As a consequence, war became a ‘ “war in form”, une guerre en forme’ (ibid.:
141) whereby the justice of war no longer had anything to do with the causes of
war, but was concerned only with the formal adequacy of the belligerents: they
had to be justi hostes, bearer of the jus belli, that is, European sovereign states.
In other words, ‘war became somewhat analogous to a duel, i.e. a conflict of
arms between territorially distinct personae morales’ (ibid.), part of the European
‘family’ of the jus publicum Europaeum. Such wars, Schmitt suggests,
were the very ‘opposite of disorder’ (ibid.: 187).
The notion of the just enemy, moreover, meant that such a system of war
allowed for both resistance and self-defence: given that the enemy was a priori
just, its right to self-defence and to resistance was recognised, precisely because
the issue of just cause was eliminated. This also allowed for the development of
the institution of neutrality for third-party states in international law. The only
unjust war was the non-state or private war: rebels, pirates, outlaws, perturbateurs
are not justi hostes but criminals and as such they have to be dealt with
through punitive actions in the sense of modern criminal law.
As a result, the jus publicum Europaeum allowed for the construction and