The Nomos of the Earth in the International Law of Jus Publicum Europaeum

This is a thorough and fascinating overview of laws and spatial orientations ("Räumsinne" in German) that have both changed and remained consistent throughout millennia.

Carl Schmitt, jurist and political theologian, examines everything from Greek antiquity to Spanish conquest of the Americas up until the League of Nations to question whether or not there is some fundamental moral or natural order under-girding the laws that men have used to govern one-another and themselves through the ages. Although Schmitt is undoubtedly conservative, his examination of colonialism and imperialism, contrasted with his even-handed treatment of Marxism, makes this essential reading for anyone who wants to read a meditation on the theoretical uses of power, and the application and abuses of power and force in the realm of human affairs (especially in war). As with all of Schmitt's works, there is also much examination of geopolitics and the implication of where and how borders are drawn, and by whom and under what system of reasoning.

The reading isn't light, but Schmitt is a clear thinker and expresses himself in a way that the advanced layman should have no trouble understanding. His meditations on space/ Räume are not only relevant today, but are even more important concepts to understand now, as the terrain in which humans vie for control of one-another have expanded beyond land, sea, and even space as Schmitt understood it.

He died just as the next philosophical turn ("Wendung" in German) was changing from the macro- and micro- to the nano-, and of course with the rise of drone warfare and the surveillance state, his grappling with the big questions is an endeavor from which no one should be excluded.

"The Nomos of the Earth" is an open invitation to begin thinking in deeper terms about power, borders, contracts, and whether Hobbes or Roseau will have the final say in how man will either advance or destroy himself with civilization, its laws, and its technology. Schmitt also leaves open the possibility that some sort of compromise between various orientations and understandings might be reached, precluding the need for conflict or a struggle which (considering the means we now have at our disposal) could be all-consuming/annihilating. The work strikes just the right balance between a pragmatic rumination and a (for Schmitt) humanistic tendency to believe that a resolution of our many antagonisms might not be beyond reach. Recommended.

Despite its trilingual title, this book is not quite as difficult as it may appear. It is a brief history of international law from a distinctive viewpoint. The ancient Greek word "nomos" is considered by the author to refer to the allocation of land, an act he regards as basic to the establishment of law since land is directly associated with power. "Jus publicum Europaeum" means "European public [i.e., international] law." The author associates international legal systems with regions of the earth, each possibly with a system of its own. Such a region is known as a "Grossraum". The narrative goes like this:

International law began with a federation or empire of associated cities or other settled entities set in the midst of unsettled territory outside. A "civilized world" grew from settlements and land allocations. Ancient empires could eventually establish contact and by means of a treaty engage in peaceful commerce with each other.

When the Roman Empire fell, the conquerors took over its legal culture (not to mention a good deal more). Christian thinking reached a high level of subtlety while Europe was surrounded by non-Christian enemies. The earliest form of European international law came into being to regulate war between Christian princes, which was a civilized process compared to wars against outsiders, who were considered children of the Devil. This was the period of the "just war" (a concept of Augustine) and the "just enemy". In the author's terminology, the lands inside Europe had a "soil status" different from that of the lands outside. There was a distinct "grossraum" for each.

The Reformation destroyed the fabric of belief underlying "just war" formulations. After Bodin and Hobbes, there were only sovereign states. From the 16th to 18th centuries, the "just war" concept was revived in a different form. Grotius and Kant saw the unjust enemy was one whose conduct indicated an attempt to upset a balance of power between states. The author suggests that this criterion might be inadequate. If the balance of power (in effect, territory) was perceived as wrong, then some (revolutionaries for example) might deem it deserving of upset. That is, political or ethical issues might be involved that a purely juristic point of view could not resolve. There was also a special role for "neutral" states, which could mediate between combatants. Guarantees of neutrality were assigned to states by pan-European conferences like the Congress of Vienna. The author's discussion of balance of power, neutrality, and state succession in Part III, Chapter 4 is the core of the book.

During this period, Europeans were exploring the oceans and continents of the New World, which they saw as simply expanses that were for all practical purposes uninhabited and appropriate for free commerce and even piracy (on the sea. legally sanctioned). "Amity lines" on maps delimited zones of exploitation by specific nations. The English excelled in developing the new areas, mainly for economic purposes. Their preoccupation was free trade; it was appropriate that England with her navy should be the greatest power in the New World. In this way another "Grossraum" came into being. Now there were two major areas, each with its own characteristic "nomos".

The character of New World soil changed after the American revolution. In the minds of Jefferson and others, the Americas were pure and not to be defiled by European intervention. The US began to show considerable influence in the New World "Grossraum" by promulgating the Monroe Doctrine. On the other hand, European international law was unable to take into account developments outside its area and consequently went into decline. For example, in the 1885 Congo Conference. King Leopold II of Belgium, a state designated as neutral, was able to make the Congo a private colony with the same land status as his kingdom. This was absurd from the European viewpoint. The Versailles Treaty and the Geneva Protocol provided additional evidence of decline. By resorting to sections of the German civil code, the European allies attempted to punish Kaiser Wilhelm personally for the War even though Bethmann-Hollweg declared the full responsibility to be his. This viewpoint allowed no place for the concept of specific acts as war crimes. The Americans were somewhat more thoughtful; they avoided the problems of Versailles by signing a separate peace with Germany, but likewise gave in to popular sentiment with the Kellogg-Briand Pact and the Stimson Doctrine, which likewise blurred the legal contrast of war as a whole with specific acts of war. The Americans also promulgated new ideas about aggression and diplomatic recognition about which the author has doubts. Interestingly he appears to find the concept of just war legitimate.

There is no space here to discuss the further ramifications of the author's ideas. Surprisingly he was the principal political and legal theorist of Nazi Germany; the book was written in Berlin during World War II. But this is a work that experts take very seriously and I am sure it is not merely an apology for Nazi policies. The introduction by G. L. Ulmen provides important background.