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

Nomos: word and myth 245
If Michel Foucault is renowned for shifting attention away from ‘the who’ of
power to ‘the how’ of power, Schmitt insists on ‘the where’ of power – or rather
of law. As he puts it: ‘Prior to every legal, economic and social order, prior to
every legal, economic or social theory, there is this simple question: Where and
how was it appropriated? Where and how was it divided? Where and how was it
produced?’ (Schmitt 2003: 327–328, original emphasis). Law is understood as
geographically situated and situating. As the first corollary of nomos states, law
is ‘the unity of order and orientation’ (ibid.: 42–49).
It does not take much imagination to conjure up a counter-position to
Schmitt’s which points to the ever changing character of words and concepts,
and their dependence on specific discursive and social-political formations, and
which uses the contingent trajectories of discourse and concepts to criticize a
search for the original meaning of terms. The temper of Michel Foucault’s
genealogy, as an example of this position, would thus appear to be very much
contrary to Schmitt’s philology. Yet if one considers the way in which the now
discarded uses of terms gave Foucault analytical capacity in relation to current
practices we find a similar process of recovery in order to clarify and illuminate.
Thus, for example, Foucault’s discussion of the term ‘government’ as broader
than its current reduction to a specific set of political institutions relies heavily
on an appreciation of the way the term operates in various sixteenth- and seventeenth-century
literatures (Foucault 1991; Dean 1999).
Given the influence of Foucault’s work on government and on power more
broadly, it would seem important to situate Schmitt in relation to it. If we were
to confront Foucault’s concern for the arts of government – or ‘governmentality’
– with the concept of nomos, we could say that he traces the active forgetting of
nomos – or at least of the ‘appropriation’ which historically and logically precedes
any social, political and legal order – in the history of European consciousness.
Foucault’s genealogy of the arts of government traces the mutation
from an early modern household rationality, in which oeconomy is still tied to
the oikos, to a liberal mode in which governing occurs through individual selfgovernment
and the self-governing process of economy and civil society. Foucault’s
analysis of governmentality hence encompasses rationalities which
privilege in turn distribution and production but which do not really open up the
presupposition of each in appropriation. Just as liberalism seeks to put limits to
sovereignty, it relegates appropriation to its external condition or prior precondition,
and renders human beings within a rootless and spaceless universalism.
Schmitt would certainly agree that liberalism (and, he would add, socialism)
privileges the cycles of production and consumption over those of distribution
and appropriation as a solution to social problems. But he adds to Foucault’s
account by tracing the meaning of the word nomos from nomadic existence to
the emergence of settled communities. 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. He thus agrees with Foucault
that the discovery of production follows, rather than precedes, distribution.
However, he adds that land appropriation is the condition of the settled