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

244 M. Dean
presupposes a community that has formed itself into an entity that has appropriated
land and other resources to itself and now seeks to resolve the question of
justice within that community. To those who might have been excluded from
appropriation, this question of justice does not apply. As Schmitt acerbically put it:
Concretely speaking, Nomos is, for example, the chicken every peasant
living under a good king has in his pot every Sunday; the piece of land he
cultivates in front of his property; the car every worker in the US has parked
in front of his house.
(2003: 327)
As the last example suggests, nomos in this sense is linked to the settled communal
order and to a conception of economy still linked to the household, to oikos.
Finally, the content of nomos is given by the verb weiden (German) meaning
‘to pasture’, ‘to run a household’ or ‘to produce’. A part of the settled community
and its law is the existence of households, agriculture and systems of production.
A massive shift in nomos occurs in the movement of nomads to settled
existence. In a footnote, Schmitt claims ‘nomad’ is derived from the Greek
nome, meaning capturing or grazing or wandering in search of pasture (ibid.:
326). The nomadic search is then one of appropriation of land for pasture rather
than, for example, a movement through and beyond a specific area in a cyclical
sense. It is for Schmitt a movement of the nomos towards settled community,
family and household, towards the oikos, which then becomes the primary site
of production. Nomadism does not seem to figure in Schmitt’s mythology except
as a prelude to territoriality. References to the ‘nomadic age’ are to neither
historical nor anthropological sources but to a classical Greek conception of it
and the age of the shepherd or nomeus (ibid.: 340). This provides us with a
major indication of Schmitt’s own orientation, perspective and mentality.
For Schmitt a decadent use of the term sets in quite early. 1 He accuses the
Sophists of a diminution of nomos from a fact of life to a prescribed ought when
they opposed nomos and physis (Schmitt 2003: 67–69; Ulmen 1993: 43). Similarly,
he charges Plato with reducing nomos to mere rule (schedon) and contrasts
this with Aristotle’s distinction between various nomoi (laws) and the
concrete order as a whole (nomos). The latter for Schmitt retains something of
the original conception of nomos as spatial unity.
What does this recovery enable him to criticize in the present? He takes aim
at positivist conceptions of law which reduce nomos to empty and formalistic
legislation, and which reduce legitimacy to a mere legality. ‘The word nomos is
useful for us’, says Schmitt, ‘because it shields perceptions of the current world
situation from the confusion of legal positivism, in particular from the muddle of
words and concepts characteristic of nineteenth century jurisprudence dealing
with domestic matters of state’ (2003: 69). More broadly, he takes aim at conceptions
of law which fail to understand the history of ‘land appropriations’ that
are constitutive of law and what he calls ‘the concrete spatial character’ of a
community that is fundamental to any social, economic and legal order.