Schmitt on Monarchy and Historicism

In Constitutional Theory Schmitt enumerates the various types of justification presented for monarchy and separates them into two classes: political and nonpolitical.

Religiously grounded justifications for monarchy only have polemical meaning for enlightenment opponents because the source of the monarch's power is not owed to any man or institution. But the significance is greater for the traditionalist, who recognizes in the monarch an analogy to God who governs the world. The religious justification goes beyond mere analogy, though, as the monarch is also considered to have supernatural attributes. Schmitt explains that “[t]he last attempt to work seriously in practical terms with these religious images of monarchy falls in the year 1825, when Karl X of France still wanted to heal the sick through the laying on of hands, an attempt, however that only produced a somewhat embarassing romantic imitation.”

The patriarchal justification exemplified in the work of Filmer takes a similar approach through analogy, and is therefore also misunderstood by enlightenment opponents. Schmitt categorizes these justifications:

“All principled justifications of monarchy contain at the core only two ideas, which lead in a distinctive sense directly to monarchy: the idea of a personal god and image of the father. None of these ideas belongs essentially to the political sphere. Where the monarchy is religiously justified and the monarch becomes a divine creation or one standing in a special connection with God, the idea moves in the theological realm or on the terrain of worldviews, not in the political sphere. If the world is governed as a unity by a single god, and the unity of the state is understood under a monarch as something equivalent and analogous, the primary concept is obviously God and world and not monarchy and state. If the monarch is understood as the father of the state family and the dynastic concept of a hereditary monarchy is derived from it, the idea of first importance is family and not state. Always, therefore, it is nonpolitical ideas and images that constitute the core of the argumentation.”

To this understanding Schmitt contrasts 19th- and 20th-century justifications for monarchy, which turn on pragmatic-political justifications. Under this tradition of thought Schmitt surprisingly places both enlightenment and certain counter-enlightenment thinkers:

”In the nineteenth century, the rationalistic and empirical justifications of monarchy are distinguished by the fact that they incorporate the monarch into the rechtsstaat system of separation of powers. These justifications make a mere governmental form out of the monarchy and render it into the more or less influential chief executive. The justifications are different here, but they always take proving the usefulness and appropriateness of the monarchy as their point of departure...Every consideration of appropriateness and usefulness, just like all arguments deduced from historical experience, whether they are presented by liberal theorists like Benjamin Constant and Guizot or by antiliberal monarchists like Charles Maurras, are necessarily relative.”

Schmitt proceeds to criticize the historicist arguments because if one takes such an approach, then “[o]ne can only say that monarchy arises and passes away like everything in history.”

Interestingly, this criticism can be raised against de Maistre, who advances certain historicist and pragmatic justifications for the monarchy.

Eiserne Krone: Carl Schmitts Hobbes-Interpretation

Eiserne Krone reports on a new book that investigates Schmitt's Hobbes. The popular description of Schmitt as the "20th Century Hobbes" is rather misleading unless one understands how Schmitt's Hobbes differs from the social-contract Hobbes we usually associate with the author of Leviathan.

Eiserne Krone: Carl Schmitts Hobbes-Interpretation

Some observations on Schmitt's early constitutional theory and de Maistre's analysis of constitutions.

“Government is a true religion; it has its dogmas, its mysteries, its priests; to submit to the individual discussion is to destroy it; it has life only through the national mind, that is to say, political faith, which is a creed.” - Joseph de Maistre, “Study on Sovereignty”


In his "Study on Sovereignty," Joseph de Maistre argues that no nation is constituted a priori because a constitutive act requires a presupposed common ground for compromise and the mutual recognition of duties and rights amongst the people. This common ground is the essence of the constitution because the force of the prescriptions codified in the document derives from the capacity and will of the constitution-writing people to enforce and assent to those laws. This will depends in turn on the pre-formal customary duties observed by the constituting people. For example, Americans have rights because the original constituting force was bound by the customary duty to subordinate itself to whatever prescriptions were given in the constitution. If this original duty is subjected to critical thought – to rational discussion – then it is possible that this duty may be attacked and destroyed institutionally. That is, if the initial conditions of a constitution-making people, such as the customs antecedent to the written constitution, are subject to the same procedures as ordinary constitutional laws – abrogation though amendment or even indictment through public discourse – then it is possible that the basis of the social order may be eliminated. Since the preservation of social order is an axiom of statecraft, this problem has to be confronted by all administrations.


This possibility leads de Maistre to champion the necessity of national dogmas and prejudices that are unimpeachable through discussion and rational political procedure. In practice, this would entail restrictions on certain bourgeois liberties like freedom of speech, and on the scope of laws.


Schmitt employs a similar pattern of reasoning in the development of his constitutional theory. The distinction between "constitution" and "constitutional law" that Schmitt emphasizes against legal-positivists aims at limiting the scope of legislation and adjudication in order to reinforce the foundation of the political order against corrosive legal and administrative activism. The constitution, for Schmitt, is qualitatively different from a constitutional law, but it also determines the validity of constitutional laws. Schmitt, like de Maistre, believes that a constitution presupposes existing social forms and agreements. A constitutional convention does not create a new political unity but instead gives a constitution to an already-existing concrete political community in a decisive act, and through that process determines a specific form of political life for the community:


“[T]hat the constitution establishes itself is obviously nonsensical and absurd. The constitution is valid by virtue of the existing political will of that which establishes it. Every type of legal norm, even constitutional law, presupposes that such a will already exists.” - Constitutional Theory, 76


Schmitt justifies this assertion through a comparative analysis of various constitutions and then explains that constitutional laws are valid only if they are consistent with existential values:


”Every existing political unity has its value and its “right to existence” not in the rightness or usefulness of norms, but rather in its existence. Considered juristically, what exists as political power has value because it exists. Consequently, its “right to self-preservation” is the prerequisite of all further discussion; it attempts, above all, to maintain itself in its existence, “in suo esse perseverare” (Spinoza); it protects “its existence, its integrity, its security, and its constitution,” which are all existential values.” - Ibid.


If the political community in America decided on the political form of democracy against monarchy (as stated in the preamble to the constitution), then any subsequent constitutional law must be consistent with this decision and not establish, for example, sovereign bodies that are unaccountable to the "people" mentioned in the preamble. From a purely normative standpoint, it might be "legal" for the constitution to be amended so that it enables an absolute sovereign and terminates democracy, but for Schmitt, this amendment would be unconstitutional because it was inconsistent with the initial political form chosen by the constituting force. Indeed, Schmitt explains that, although the Weimar constitution could be changed through constitutional amendment [Art. 76], this procedure “should not be taken to mean that the fundamental political decision that constitutes the substance of the constitution can be eliminated at any time by parliament and be replaced through some other decision. The German Reich cannot be transformed into an absolute monarchy or into a Soviet republic through a two-thirds majority decision of the Reichstag. The “legislature amending the constitution” according to Art. 76 is not omnipotent at all” (Ibid, 79). Such a radical change in the form of political existence can therefore never be brought about through the legal process; the change is only possible through a radically new, extra-legal political event.

Some notes on de Maistre's Considerations

Joseph de Maistre's Considerations on France contains an interesting sketch of realist anti-formalism. Below are some citations and reflections.

”1. No constitution is the result of deliberation. The rights of the people are never written, or at any rate, constitutive acts or fundamental written laws are never more than declaratory statements of anterior rights about which nothing can be said except that they exist because they exist." (Maistre's note: “It would take a fool to ask who gave liberty to the cities of Sparta, Rome, etc. These republics did not receive their charters from men. God and nature gave them to them.”) (Considerations, 49)

Analysis: Rights consist in the power to act within a certain sphere defined by the observance of duty by others (see Hohfeld's analytic). If this sphere has not been created, then they do not exist. In addition, this sphere cannot be created by formalization, because written laws are inert and do not enforce themselves.

One deficiency of this explanation is that it doesn't account for the possibility that a formal declaration of rights produced by deliberation can precede the enforcement of rights. However, one can still say that these rights potentially existed, because the power to enforce them existed, and the declaration only brought out the latent possibility.

”The rights of the people, properly so called, often enough proceed from the concessions of sovereigns and in this case can be verified historically; but the rights of the monarch and the aristocracy, at least their essential rights, those which we may call constitutive and basic have neither date nor author.” (Considerations, 50)

Analysis: The second part of this sentence references Divine influence on the origin of right, but it also conforms with Maistre's realist analysis of law. In a monarchy characterized by dynastic legitimacy, the sovereign gives the constitution to a nation and possesses the power to legislate. Hence, the rights of the people proceed from the power of the sovereign. However, the rights of the sovereign and the nobility cannot proceed in this same manner, because they are presupposed by the very capacity to legislate and give rights. This means that any declaration of the rights of the aristocracy or the monarch would be tautologous in the sense that they would be the formal declaration of powers that already exist de facto.

”5. Although written laws are merely declarations of anterior rights, it is far from true that everything can be written down; in fact there are always some things in every constitution that cannot be written and that must be allowed to remain in dark and reverent obscurity on pain of upsetting the state." (Ibid)

Analysis: Maistre cites Hume to this end: “[Parliament's right to remonstrate against the king] touched upon the circumstance in the English constitution which is most difficult, or rather altogether impossible, to regulate by laws, and which must be goverened by certain delicate ideas of propriety and decency, rather than to any exact rule or prescription.” To this principle Maistre opposes Thomas Paine's assertion that a constitution doesn't exist unless it can be put in his pocket.

For Maistre, like Bodin before him, the penumbral darkness endemic to all legal forms calls upon existing, anterior principles presupposed but not expressed by the law.

”6. The more that is written, the weaker the institution becomes, and the reason for this is clear. Laws are only declarations of rights, and rights are declared only when they are attacked, so that a multiplicity of written constitutional laws proves only a multiplicity of conflicts and the danger of destruction.” (Ibid)

Analysis: Codification has a specific purpose consisting in the preservation of principles that may otherwise be ignored or forgotten. In other words, codification confers moral qualities on principles by the act of formalization. Thus, if an entity declares its own rights, it is revealing that it needs to defend those rights through other means besides those normally characteristic of its being.

Maistre continues: ”This is why the most vigorous political system of secular antiquity was that of Sparta, in which nothing was written.”

”7. No nation can give itself liberty if it is not already free. When a nation begins to reflect on its existence, its laws are already made. Human influence does not extend beyond the development of rights already existing but disregarded or disputed. If imprudent men overstep these limits with reckless reforms, the nation will lose what rights it had without attaining those it hopes for. From this follows the necessity of innovating only rarely and always with moderation and trepidation.” (Ibid)

Analysis: As mentioned earlier, formal procedure and legislation confer a special moral quality on principles that need to be defended. However, if this moral legitimacy inherent in legality comes to dominate the presupposed legitimacy of the constitution-giving power, then it is possible that rights may be legislated that impinge on the rights of the original institutions. This is how a nation loses its original, fundamental rights.

The Maverick Philosopher on Political Romanticism

An adequate exposition of Schmitt's theory of political romanticism from the Maverick Philosopher

The author of that blog has since moved here.

Thomas Kuhn on Deism and Political Theology

"Other reflections of the new science can be discovered in the political philosophy of the eighteenth and nineteenth centuries. Several recent writers have pointed to the significant parallels between the seventeenth-century conception of a mechanically functioning solar system and the eighteenth-century conception of a smoothly running society. The system of checks and balances incorporated in the Constitution of the United States, for example, was intended to give the new American society the same sort of stability in the presence of disruptive forces that the exact compensation of inertial forces and gravitational attraction had given to the Newtonian solar system. Also, the eighteenth century's determination to derive the characteristics of a good society from the innate characteristics of the individual man may well have been fostered in part by the corpuscularism of the seventeenth century. In eighteenth- and nineteenth-century thought the individual appears again and again as the atom from which the mechanism, society, is fabricated. In the opening paragraphs of the Declaration of Independence, Jefferson dervied the right to revolution from the God-given or inalienable rights of the social atom, man, and his derivation seems to parallel the one in which Newton, a century earlier, had derived the mechanism of nature from the God-given or innate properties of the individual physical atom."
- Thomas Kuhn, The Copernican Revolution, 263

Sacred Orientations: Schmitt and Eliade

The Sacred and the Profane

“[T]he sign, fraught with religious meaning, introduces an absolute element and puts an end to relativity and confusion. Something that does not belong to this world has manifested itself apodictically and in so doing has indicated an orientation or determined a course of conduct.” - Mircea Eliade, The Sacred and the Profane

“An abyss separates us from the time when international law textbooks still spoke of Christian international law, and of the right of Christian nations.” - Carl Schmitt, The Nomos of the Earth

Schmitt's presentation of the nebulous Nomos theory of law is a confounding departure from the more rigorous and precise decisionist and institutionalist methods employed in his Weimar-era works. Despite this fault, Schmitt manages to present several valuable insights in Nomos of the Earth and Land and Sea, and it is for this reason that there has been a surge of interest in Schmitt's post-Weimar texts. But most of this interest has manifested itself in relatively straightforward treatments of Schmitt's arguments without reference to his (to a certain extent incoherent) theoretical context. The following is a limited discussion of that theoretical context focusing on the work of Romanian philosopher and religious historian Mircea Eliade. Eliade's own theoretical context is equally complex and this piece can accordingly only serve as a preliminary investigation that will need to be supplemented in the future by reference to thinkers like G.W.F. Hegel, Emile Durkheim, Rene Guenon, Julius Evola, Martin Heidegger, as well as the Historical school of jurisprudence. The scope of this investigation is furthermore confined to Eliade's work of religious history and phenomenology: The Sacred and Profane.

Religious history and phenomenology are relevant to Schmitt's later jurisprudence as a consequence of his belief in the relationship between myth, religion and law. This belief is supported by the scholarship of figures in the Historical school of jurisprudence like Savigny and Bachofen, and by the conclusions of the three famous 19th century Catholic counter-revolutionaries: Joseph de Maistre, Luis de Bonald, and Donoso Cortes. However, at the beginning of Nomos, Schmitt cautions us not to focus too intensely on “elemental-mythological” approaches because the book rests on essentially “jurisprudential foundations.” (Schmitt, 37) Nevertheless, in distinguishing himself from Haushoferian geopolitical approaches, Schmitt affirms that the “ties to mythological sources of jurisprudential thinking are much deeper than those to geography” (Schmitt, 38) and concludes that “[h]uman thinking again must be directed to the elemental orders of its terrestrial being here and now.” (Schmitt, 39)

Eliade's Theory

Eliade, like Durkheim, divides the world into two modalities: the sacred and the profane. For Eliade, however, these modalities are existential categories concerning different types of “being in the world” (Eliade, 14). For those who exist this way, and divide the world accordingly, space is experienced as something heterogeneous because it is carved up between sacred and profane spaces.

Sacred space has a fixed ontological character in that it is the only “real” space, which is distinguished from the formless, chaotic “profane” world. In other words, “the manifestation of the sacred ontologically founds the world” (Eliade, 21). Eliade gives the name “hierophany” to this phenomenological event. The disenchanted natural world, which is ordinarily profane, reveals something sacred to man through hierophany. The incarnation of God in the natural body of Jesus Christ, was, for Eliade, “the supreme hierophany” (Eliade, 11). This experience, “a primordial experience, homologizable to a founding of the world,” is pre-conceptual and precedes all human reflection on the world (Eliade, 20).

Ontological Realism

From his investigations of various religions throughout history, Eliade concludes that “religious man has always sought to fix his abode at the center of the world” (Eliade, 22). To have an abode or a home furthermore presupposes a fixed, unassailable point that cannot be referenced if every point is relative; i.e., one cannot orient oneself spatially without a fixed point that is differentiated from other points. Eliade therefore concludes that, “no world can come to birth in the chaos of the homogeneity and relativity of profane space. The discovery or projection of a fixed point – the center – is equivalent to the creation of the world” (Ibid). Thus, hierophany confers unique ontological status on a specific point in a homogeneous world, thereby making the world heterogeneous.

Sacred space therefore rests like an island in the formless, chaotic sea of the profane. This is more than a vague metaphor because water symbolizes in primitive cultures “the preformal modality of cosmic matter” i.e., chaos (Eliade, 41). According to Eliade, the present age is defined by this sea: it is profane. Waves of orientation – fixed points – emerge and disappear in accordance with pragmatic “needs of the day” (Eliade, 23). And yet the present age cannot entirely do away with the sacred because it is the only source of orientation, and orientation is, for Eliade, a necessary condition for all further human activity (Eliade, 22). We therefore retain sacred temporal orientations, like our birthday, or spatial orientations like our place of birth, or our church. For Eliade, the Church serves a function analogous to a wall: it separates the sacred and profane, providing an island of orientation for religious man.

Religious man's desire for spaces like these is not just a negative desire not to “be paralyzed by the never-ceasing relativity of purely subjective experiences,” (Eliade, 28) but is also a desire to imitate parts of our religious narrative – our cosmogony. Indeed, Eliade states that the efficacy of religious man's attempt to construct a sacred space is measured by the extent to which it “reproduces the work of the gods” (Eliade, 29).

Land appropriation

In his attempt to demonstrate how sacred space influences religious man's existence, Eliade focuses a great deal on territory and land appropriation.

“One of the outstanding characteristics of traditional societies is the opposition that they assume between their inhabited territory and the unknown and indeterminate space that surrounds it. The former is the world (more precisely, our world), the cosmos; everything outside it is no longer a cosmos but a sort of “other world,” a foreign, chaotic space, peopled by ghosts, demons, “foreigners” (who are assimilated to demons and the souls of the dead)” (Eliade, 29).

The division between home territory and extra-territorial spaces (inhabited or not) therefore entails a division between sacred and profane space for religious man, because orientation toward a home and a world only occurs as a consequence of the manifestation of the sacred. Eliade further indicates that this distinction is accompanied by the possibility of new categories to comprehend and deal with the extra-territorial, profane space. To the extent that this space is inhabited by humans, possibilities for political and legal delineations emerge.

Because religious man desires sacred space, and because the paradigmatic model for the sacralization of space is found with the gods in their Creation, religious man attempts to consecrate these chaotic, extra-territorial spaces and establish sacred orientation in their place; i.e., he attempts to appropriate profane spaces. This appropriation is, according to Eliade, accompanied by a “ritual repetition of the cosmogony” because what is to become religious man's world must first be “created” (Eliade, 31).

“When the Scandinavian colonists took possession of Iceland (land-náma) and cleared it, they regarded the enterprise neither as an original undertaking nor as human and profane work...For them, their labor was only repetition of a primordial act, the transformation of chaos into cosmos by the divine act of creation” (ibid)

This primordial act is the origin of the legal title to land. Legal validity is conferred on the act of appropriation by its “unification” with the creative work of the gods (Eliade, 30). Religious man, in conquering and establishing order in a profane space through force, thereby orients the space toward a sacred cosmos. Since theology is normative, the process of orientation has the associated effect of establishing a legal order. “At this origin of land-appropriation, law and order are one; where order and orientation coincide, they cannot be separated.” (Schmitt, 81)

Law as the unity of order and orientation

The legitimation of the appropriative act by orientation to the sacred ontologically fixes that space and its institutions. This power to ontologically “fix” a space resides in myth, for Eliade, because myth speaks of realities and of what was or is the case without justification. Myth therefore establishes “apodictic truth” (or, at any rate, truth that is experienced as unassailable and fixed) on the ruins of chaos (Eliade, 95). Schmitt accordingly begins his discussion of the origin of law by reference to “mythical” language and its “threefold root of law and justice” (Schmitt, 42). Schmitt's initial discussion of this origin describes law as a product of the human experience of living on and cultivating the land: land supports linear divisions, cycles of harvest and the visual extension of man's dominion over other men and animals in the form of walls and enclosures. (ibid) In contrast, for Schmitt, the sea does not contain these possibilities for rhythms of cultivation or linear division because the sea does not support structures or hold forms.

From this distinction between land and sea we can infer the empirical and phenomenological approach Schmitt employs: it is originally not possible for man to experience or structure the sea in a way similar to the possibilities afforded by land so that he may have law (recall Eliade's assertion that the sea is originally conceived as chaos). Hence, law and norms are originally bound to the immanent experience of earth and entailed by the possibilities for order and structure on land. These structures are additionally oriented toward mythology by virtue of primitive man's understanding of the Earth as a sacred entity.

Schmitt is furthermore in agreement with Eliade that each ancient or “pre-global” civilization

“considered itself to be the world, at least the world inhabited by human beings, or to be the center of the world, the cosmos, the house, and each regarded the part of the earth outside this world, as long as it did not appear to be threatening, to be either uninteresting or an odd curiosity. To the extent that this outside was threatening, it was thought to be a malevolent chaos, in any case, to be an open and “unoccupied” space “free” for conquest, territorial acquisition, and colonization.” (Schmitt, 51) (Compare with Eliade quote above).

The appropriation of chaotic land is accompanied by a new initial division and distribution of the soil, which, for Schmitt, determines the nature of all subsequent “legal relations to soil” (Schmitt, 45). The total ownership and division of land by the land-appropriator is to be understood as a categorical presupposition of law, and Schmitt cites Kant's Philosophy of Law to this end. Supreme proprietorship of the soil, according to Kant, is the “main condition for the possibility of ownership and all further law, public as well as private” (Schmitt, 46). One of Schmitt's examples of law's “telluric” nature is England. English law “clearly distinguished between English soil – those areas ruled by common law – and other spatial areas; common law was regarded as the law of the land (lex terrae)” (Schmitt, 97).

Once land has been appropriated, subsequent legal and institutional developments are informed by “concrete orientations.” The medieval respublica Christiana, for example, was defined by an orientation toward Roman soil, and was characterized by a territorial distinction between sacred Christian and profane heathen territory. The latter could be appropriated by Christians through a Papal order manifested in the form of a just war, which was a type of war oriented to a profane sphere populated by foes (in the absolute, Schmittian sense of the term) (Schmitt, 58). Internal Christian wars, on the other hand, were bracketed according to certain principles, and therefore “did not abolish or negate...total order” (ibid). This distinction implies that legal categories like war and peace were not “free floating” universal concepts, but rather concepts “concretely oriented” toward “the empire, the territorial ruler, the church, the city, the castle, the marketplace, the local juridical assembly” (Schmitt, 59). In this context, it seems that “orientation” signifies a sort of mooring to institutions and places inhabited by actual people living according to certain principles or guiding ideals. Thus, the attachment to Rome by the medieval Christian empire “signified a continuation of ancient orientations adopted by the Christian faith,” and the papacy was “bound inseparably to Rome, in fact, to Roman soil” (ibid).

Schmitt appears to believe at this point that his concept of “orientation” is sufficiently defined to make the assertion that legal continuity “should not be sought historically in cultural and economic consistencies” because “[t]he continuity that bound medieval international law to the Roman Empire was found not in norms and general ideas, but in concrete orientation to Rome” (ibid). However, he has not yet justified this conclusion, because the initial act of land appropriation could simply be analogized to an intellectual abstraction, and “orientation” could be understood simply in terms of a collection of unexpressed assumptions.

Nomos

Schmitt maintains that the original meaning of law was destroyed by various antitheses, especially the distinction between nomos and physis, “whereby nomos became an imposed “ought” dissociated from and opposed to is. As a mere norm and act, nomos no longer could be distinguished from thesmos [law or legislation], psephisma [plebiscite], or rhema [command], and from other categories whose content was not the inner measure of concrete order and orientation, but only statutes and acts” (Schmitt, 69). Schmitt's point is that law was not originally an intellectual abstraction defined by a principle of deontic logic as it came to be in the work of early legal positivists and Hans Kelsen specifically. However, by calling upon mythical language, Schmitt does not intend to “breathe artificial new life into dead myths,” but rather develop heuristically an old concept for a new age in which legal certainty is virtually nonexistent. Schmitt hopes to re-establish legal certainty by demonstrating the original unity of is and ought in the act of land appropriation, which is justified by reference to the sacred. Schmitt also refers to the structural limitations and requirements of spaces – between the sea and land, for example – as certain guidelines for the limits of law. It is sufficient for this investigation to state that this aspect of his approach defines the limits for establishing order, while reference to myth informs his approach to orientation. Indeed, Schmitt asserts that order and orientation meet in the “terrestrial fundament” during the act of land-appropriation (Schmitt, 47).

Nomos, originally conceived, “is the immediate form in which the political and social order of a people becomes spatially visible – the initial measure and division of pastureland, i.e., the land-appropriation as well as the concrete order contained in it and following from it” (Schmitt, 70). To this end, “nomos can be described as a wall, because, like a wall, it, too, is based on sacred orientations” (Ibid). The initial divisions and measures a people gives itself at the moment of land appropriation are therefore oriented toward the sacred. Indeed, the very concept of a wall seems to entail a distinction between order and chaos, and therefore the sacred-profane modality.

In a certain sense, Schmitt's nomos theory of law appears indistinguishable from social-source theses in the philosophy of law, wherein a social event is attributed normative power (hence Jellinek's phrase concerning the “normative power of the factual”). Schmitt explains, for example, that “nomos is precisely the full immediacy of a legal power not mediated by laws; it is a constitutive historical event – an act of legitimacy, whereby the legality of a mere law first is made meaningful.” (Schmitt, 73) The original act of appropriation is, however, more than simply a non-normative origin of law, for the spatial measures and divisions produced by the appropriation preserve an orientation toward that initial act through time.

Instructive here is Schmitt's discussion of an alternate translation of the Odyssey. Schmitt believes that it makes more sense to speak of Odysseus “comprehending” the various nomoi of the lands through experiencing them rather than coming to “known” or conceptualize the local laws in a neo-Kantian sense. By his experience of the walls, enclosures and divisions of the various tribes and cities he visits, Odysseus understands their fundamental “concrete orders” and norms. In this sense, Odysseus' experience of a city produces “apodictic” normative conclusions about what is sanctioned and forbidden. There is no need, in other words, to make reference to ideology or abstract norms and “basic norms,” because it is prima facie the case that this land is divided this way, and that goods are distributed according to the principles inherent in the very division of the land that one can comprehend by looking at it. To the extent that this initial distribution and division is understood to be oriented toward the sacred, one understands that this order ought to be this way – that it couldn't be any other way – because it is a simulation of the cosmogony. Is is thereby united with ought.

The Marian conquest of the New World

In the Middle Ages Europeans considered Jerusalem and Rome to be the center of the earth - an orientation that would eventually characterize the conquest of the New World. Although the opening up of the New World eventually forced a change in the “structure of old concepts” of the center of the earth (Schmitt, 87), the early appropriations of the profane New World were oriented toward Rome and the Pope (Schmitt, 92). This orientation is demonstrated by a principle of international law that obtained as a consequence of disputes over territorial acquisition. This principle – the raya line – relied on common presuppositions and a common arbitrating authority in the Pope, and, according to Schmitt, expressed “a spatial order that distinguished between the spheres of influence of Christian and non-Christian princes and peoples” (Schmitt, 91).

The Pope had jurisdiction over disputes in the New World because Papal missionary mandate was the official legal title of the conquista (Schmitt, 111). The chaos and profanity of the New World was to be conquered, ordered and subsequently oriented toward Rome and Jerusalem. In this context, all understanding of law – formal or customary – was tempered and structured by the unity of order and orientation toward Rome. The practical implications of this juridical consciousness were: 1) that law was inseparable from the moral and theological considerations of Christianity and its attendant Natural law; and 2) the normative validity of the law was self-evident because it was manifested in the institutions and force-fields of actual power created by Europeans.

The jus publicum Europaeum

Despite the fact that the legal title, and therefore the orientation, of the land-appropriation of the New World would eventually be secularized and oriented toward the concept of Discovery, Schmitt maintains that, “[f]rom the 16th to the 20th century, European international law considered Christian nations to be the creators and representatives of an order applicable to the whole earth.” (Schmitt, 86). Schmitt argues that although there was a great transformation from a theological system predicated on the Church - the medieval respublica Christiana – to a secular-juridical system predicated on the state – the jus publicum Europaeum – European and international law remained oriented toward a Christian Europe.

Here the argument seems to deviate from a model that is compatible Eliade's discussions of orientation. Indeed, Schmitt regards the detheologization of public life, the elimination of supra-territorial allegiances to churches, the centralization of political decision in the territorial sovereign, and the secularization of theological concepts to be compatible with his mythological approach to law. This new system determined legal concepts in a radically different way so that, for example, just war was determined not by theological conclusions, but rather by Europe's visible structural characteristics (its linear division into territorial nation-states) and the new institutional forms (absolute sovereignty). Schmitt explains that in the new bracketing of war, “right (law) has become a completely institutionalized form; here, men of honor have found a satisfactory means of dealing with a matter of honor in a prescribed form and before impartial witnesses.” (Schmitt, 143) The only reason such formalizations functioned, according to Schmitt, was due to the fact that they were oriented toward a concept of a Christian Europe inhabited by honorable sovereigns.

Thus, for Schmitt, the Realist and liberal assertions that this order was bound only by the maxim pacta sunt servanda are the product of superficial analyses that ignore the orientation of this order:

“[S]trong traditional ties – religious, social, and economic – endure longer. Thus, the nomos of this epoch had a completely different and more solid structure. The concrete, practical, political forms, arrangements, and preconceptions that developed for the cohabitation of continental European power complexes in this interstate epoch clearly demonstrated that the essential and very effective bond, without which there would have been no international law, lay not in the highly problematic, voluntary ties among the presumably unrestrained wills of equally sovereign persons, but in the binding power of a Eurocentric spatial order encompassing all these sovereigns.” (Schmitt, 148)

New Orientations

For Schmitt, what emerged after the collapse of the jus publicum Europaeum was a “collection of states randomly joined together by factual relations – a disorganized mass of more than 50 heterogeneous states, lacking any spatial or spiritual consciousness of what they once had had in common, a chaos of reputedly equal and equally sovereign states and their dispersed possessions, in which a common bracketing of war no longer was feasible, and for which not even the concept of “civilization” could provide any concrete homogeneity.” (Schmitt, 234)

During this period in the history of law, order and orientation are no longer unified, and a base formalism or legal positivism dominates. However, Schmitt continues to speak of orientations after the collapse of Eurocentric international law. Schmitt's approach here is similar to his method of political theology and its “sociology of juridical concepts,” which comprehends law in terms of secular analogies to theological concepts. Orientation then emerges in the context of secular-sacred spaces, such as the headquarters of the League of Nations: the city of “Calvin, Rousseau and the International Red Cross, whose spiritual fate in the past was so closely tied to the world of the Anglo-Saxon democracies” (Schmitt, 241).

There are at least two ways to interpret this secular concept of orientation. The first, which is compatible with Eliade's model, asserts that the dominant orientation of our age is, in fact, a chaotic orientation toward the sea, the medium of absolute freedom and chaos. Part of Schmitt's thesis supports this interpretation, as he writes at length of Britain's “sea-oriented concept of the status-quo” and the role of sea power in the development of the classical-liberal concept of absolute freedom (Schmitt, 245). It is more probable, however, that Schmitt's “orientation” is intended simply as the antithesis to universalism and utopia, so that any order designated and defined by and for a specific people or place has “orientation.” Land- and sea-orientations are therefore not necessarily informed by the sacred-profane modality.

Schmitt's discussion of topoi supports this interpretation because the “commonplace” or topos is to be understood as “orientation” (Schmitt, 50). Schmitt mentions Aristotle's development of different modes of discourse – different orientations - for different spaces. For example, rhetoric was oriented to the marketplace, while other forms of discussion were oriented to different spaces, like the Lyceum. In contrast, More's Utopia – his u-topos – was “rootless” and disoriented and not moored to any concrete place or situation (Schmitt, 178). The best way to understand this approach is to consider Schmitt's discussion of the history of concepts like freedom and peace. For a theologian like Vitoria, the extension of the concepts of freedom and peace are confined by, or oriented to, Christian spaces and Christian people. Another example is found in Hobbes' concept of the state of nature (as opposed to contemporary abstract formulations), which was historically oriented to the concrete reality of the conflict in the New World (Schmitt, 293).

Conclusion

Toward the end of his narrative, Schmitt appears to extract (or mirror) the formal structure from Eliade's conclusions about ontological certainty and the phenomenological experience of fixed points from the sacred-profane modality. In this way, the intuitive force of the antithesis between chaos and order remains even after the collapse of sacred orientations toward Christian land. It seems clear, then, that while Schmitt's treatment of pre-20th century international law is congruent in some rudimentary sense with Eliade's modality, his subsequent treatment is not. Primitive and religious men may have derived their legal and logical justifications for land-appropriation from their experience of the sacred, but modern man certainly does not. Modernity is thus a time of disorientation.

For Schmitt, “[i]n such times of disorientation, the essential juridical task becomes that of properly ascertaining the reality of a fading and a rising nomos, and of disclosing the derivation of each” (Schmitt, 182). Schmitt's use of Pareto's residue-derivation theory here is important because it reveals the structure of his historical approach. Man's innate desire for logical constructions produces formal derivations (law) from the concrete situation in which he is situated. By analogy, one could say that religious man's institutions and formalizations are derivations from his residual desire for the sacred. Whether Schmitt intended this is uncertain (he may have found such speculations to be juridically insignificant), and he leaves his reader to wonder about the dark secret of history that renders his historical theory of law accurate.