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In “The Nomos of the Earth” (1950), Carl Schmitt shows that order cannot exist without rootedness. Against positivist thought and the cosmopolitan ideal, he appeals to the earth, the elementary substrate of any society, in order to understand humanity’s relation to the world.

[Article initially published in the magazine PHILITT #2 devoted to the earth and rootedness.]

A great figure of the German Conservative Revolution, Carl Schmitt opposed the heirs of Auguste Comte’s positivism, and more specifically judicial positivism, whose most famous theorist was Hans Kelsen (also an opponent of Schmitt). In his “Theory of Pure Law,” he only studies and recognizes law enacted by man, that one calls positive law, obscuring the deep origin of these norms and rejecting the very idea of natural law which would be based on higher values. On the other hand, striving to find the source of law, Schmitt revives the concept of an inherent law of the land. If localization, defined geopolitical space, primarily figures in his study of power relations, his philosophy of law invites us to a very organic reading, with a ecological connotation. Then, without even mentioning any moral values, that positivists qualify as extrinsic to judicial matters in order to disregard them, “The Nomos of the Earth” puts the logic of these legalists to the test of peasant common sense: “First, the fertile earth contains within herself, within the womb of her fecundity, an inner measure, because human toil and trouble, human planting and cultivation of the fruitful earth is rewarded justly by her with growth and harvest. Every farmer knows the inner measure of this justice.” The earth is also delimited by the man who works it, just like mountain ranges and waterways. Finally, it is the foundation of all enclosures, the visible manifestations of social order, power, and property. So one understands that the earth is “triply linked to law.” A particular order exists, proper to and defined by a given territory, which imposes itself from the moment it is taken. If seas are free, order reigns on terra firma.

This vision of an a priori and de facto rootedness of order seems to void the relativist posture which consists of believing that states and nations plunge an order that they create from scratch into the soil they dominate through force, great fireworks, symbols, and inflammatory speeches. If rootedness decrees order, it gives itself the attributes of a natural force and the reassuring face of a founding myth that aims unite a people with its land in a quasi-mystical manner. Schmitt refutes those who still want to see in the notion of rootedness a pure romantic abstraction without basis in reality, a superfluous and trite tool of policy provision, indeed a “nationalist” myth of “inwardness and hate for the other,” according to the now common abject expression. In reality we will discover that it is entirely the opposite, as someone who doesn’t accept a particular soil is irrevocably linked to a particular order and would consider that the order to which he consents is valid everywhere – for example, someone who pretends to be a citizen of the world: he would potentially violate every land, every order, every law, with the exception of his own.

The authentic peace lover can only admit that from the very moment where a territory is seized, the order that it bears imposes itself, as much on the inside, on whose who have seized it, as on the outside, that is to say, on the foreigner who can only legitimately impose a different order. In other words, to consider that a concrete link between rootedness and a particular order, between a given law and the land it rules over, doesn’t exist is a negation of the sovereignties that express themselves in the diversity of orders. So rootedness no longer appears as a choice, a myth, or an a posteriori construction, but primarily as an unsurpassable necessity of politics: the necessity of submitting to the order that the earth bears and imposes on he who takes it, divides it, and works it. To refuse this postulate can only lead to the destruction of the elementary substrate of all society. By using the term of nomos to designate “the first measure of all subsequent measures, the first land appropriation as the first partition and classification of space, the primeval division and distribution,” the author formulates a deep critique of positivist thought in its entirety, which is uninterested in the “way of birth” and for which only “the law of phenomenon” counts. This semantic method shows that in legal matters as well, he who disregards history disregards the earth as much as he who disregards the earth disregards history: he is rootless.

The idealist and universalist political project inherited from the French Revolution then seems absurd, making a concrete ambition of what the author designates as “philosophical generalizations of the Hellenistic era creating a cosmopolis from the polis.” And Schmitt adds that “they were deprived of topos, that is to say localization, and thus couldn’t constitute a concrete order.” One naturally comes to think that any political project, expressed through law, that doesn’t anchor itself in solid land and the reality it imposes is suspect.

From Ungrounded Thought to the Destructive Disdain for the Earth

If the rootlessness of the positivists, when it is only a working hypothesis, an academic intellectual posture, is not an a priori danger, the judicial and political evolution that concerned Carl Schmitt at the end of the “Nomos of the Earth” illustrates the disaster to which this paradigm leads. The “jus publicum europaeum” that the French Revolution began to question before the First World War finished it, rested on the acceptance of the diversity of judicial and spatial orders and the recognition of the enemy as justus hostis, in other words as a legitimate enemy to make war upon. But the ungrounded thought of the League of Nations (now the United Nations), American imperialism sometimes masked under the traits of a benevolent universalism, linked with the considerable means of mass destruction, could have broken humanity’s instinctive and natural attachment to the earth by reintroducing the notion of justa causa, once theological (and subject to the judgment of the Pope), into military relations while subsidizing the cosmopolitan dream. It’s as if the man capable of destroying the land of another (especially if the latter cannot do the same) despised the land deeply. As if the man capable of destroying the planet only thirsts to dominate it entirely to preserve himself. The the ambition of a “new world order,” the expression that George H.W. Bush himself imprinted on us, is the most striking symbol of this political and intellectual rupture: there no longer seems to be a place for multiple and diverse political and judicial orders, linked to their own lands, whose relations would be ruled by norms simply aiming to limit war. There will henceforth be a single order, universal and cosmopolitan, that we can envision being born in the rubble of Old Europe, symbolically taking root in the ruins of Dresden Cathedral. An order that has no history since it took nothing, an order that has no land but that which it has destroyed.

Also, war will no longer be limited, but criminalized, and prohibited in principle by the United Nations. Because an order, even global, can only be peaceful. Having tasked themselves with accumulating the sufficient means to reduce the world to dust, humanity is confronted with the moral question of the usage of these weapons of mass destruction. One can only reasonably allow using them in so-called just wars against an enemy that must be destroyed, and not only contained. But air war and the very newsworthy “police bombing” operations are the image of absolute contempt for the earth. “Aerial bombardment has annihilation as its only meaning and purpose,” states the author. We see fighter planes as arrogant and proud vectors of this new world order that is imposed from above, dismissing the earth from their cockpits, only knowing the earth of the American parent company. By pretending to conduct a war without ever treading on enemy soil, the essential link between occupation, obedience, and protection is broken in the eyes of Schmitt. Without soldiers on the ground, and thus without concrete links with the earth, the way to pure and simple destruction from the air is opened. But the opinion remains: soldiers no longer die on the field of honor. Once again, the link with the earth appears as an unavoidable and necessary source of order, while the use of aerial space alone sows chaos. It seems that only the projection of men onto the earth, the mother and support of all order, is capable of giving satisfactory political results. But that doesn’t matter, because there is no longer war, because all the enemies we strike are no longer states equal to those who fight against them, but the incarnation of evil! But, as David Cumin, biographer and specialist on Carl Schmitt, likes to recall, the enemy for the latter is “the figure of our own question,” the war of annihilation examines the paradigm and the morality of great Western military powers. This new relation to the earth invites us to seriously consider the lesson of Carl Schmitt at the end of his preface: “The earth has been promised to the peacemakers. The idea of a new nomos of the earth belongs only to them,” for modern destructive war separates law from its source and its seat, which is the earth.

Source: https://philitt.fr/2016/06/20/carl-schmitt-le-nomos-de-la-terre-ou-lenracinement-du-droit/

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