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

Carl Schmitt viewed The Nomos of the Earth (2003: 37–38) as a work with
‘essentially jurisprudential foundations . . . although much indebted to geographers’.
Notwithstanding this, ‘the ties to mythological sources are much
greater’. Indeed, the author of that book, the earlier Land and Sea (1997), The
Leviathan in the State Theory of Thomas Hobbes (1996b), and the post-Second
Word War essays on nomos (2003: 324–355), reveals himself as philologist,
mythologist, student of geo-politics and legal historian, as much as a legal theorist.
These various guises raise fundamental questions about how we can read
and appropriate Schmitt today given the political choices and moral decisions he
made in the years before and during which these key works were written. While
recognizing the importance of his historical jurisprudence of international law,
the present chapter focuses on his mythology and philology.
The recovery of nomos
Nomos: word and myth 243
As in many conservatives, there is a sense of loss in Schmitt. The Nomos of the
Earth could be read as an ode to the loss of a particular world order, that
governed by European international law, the jus publicum Europaeum. The story
of the term nomos is also presented as a loss. The other side of loss, however,
is recovery. ‘I want to restore to the word nomos its energy and majesty’
(ibid.: 67).
According to Schmitt (ibid.: 325), nomos is usually translated by jurists and
historians as law in the sense of tradition or custom. It is, however, more than
that. Rather than a simple noun, the word is a nomen actionis which indicates an
action as a process whose content is given in the verb. The action and process of
nomos is given by the Greek verb nemein meaning ‘to take’, ‘to allot’ and ‘to
assign’, which in turn is the root of the German words nehmen and Nahme.
Schmitt himself uses the term Landnahme meaning ‘land-taking’ or ‘landappropriation’
to capture this primary sense of the term:
The history of peoples with their migrations, colonizations, and conquests is
the history of land-appropriation. Either this is an appropriation of free land,
with no claim to ownership, or the conquest of alien land which has been
appropriated under the legal title of foreign-political warfare or by domestic
political means such as the proscription, deprivation and forfeiture of newly
divided land.
(ibid.: 328)
However nomos has two other meanings given by other verbs. One is teilen
(German) meaning ‘to divide’ or ‘to distribute’. For Hobbes, for instance, nomos
is that act of the sovereign power that introduces and then distributes property:
‘And this they well knew of old, who called that Nomos (that is to say, Distribution,)
which we call Law; and defined Justice, by distributing to every man his
own’ (Hobbes 1996: 171, original emphasis, quoted by Schmitt 2003: 327). The
distributional question is a social question and thus a question of justice. It