NOMOS

⇓International Law and Sovereign States

⇓Dissolution of Jus Publicum Europaeum (WWI)

NB. need to supplement notes on Radical Title. Esp as that relates to the founding of a spatial order. Implications to be thought through with respect to the origin of geometry – language as necessary to the instigation of geometric truth (and therefore technicity). significance of this for techno-history (techno-aesthetic forms).

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This is the sense in which the nomos of the earth is spoken of here. Every new age and every new epoch in the coexistence of peoples, empires, and countries, of rulers and powerful formations of every sort, is founded on new spatial divisions, new enclosures, and new spatial orders of the earth. [p.79]

…there are two different types of land-appropriations: those that proceed within a given order of international law, which readily receive the recognition of other peoples, and others, which uproot an existing spatial order and establish a new nomos of the whole spatial sphere of neighbouring peoples. A land-appropriation occurs with every territorial change. But not every land-appropriation, not every alteration of borders, not every founding of a new colony creates revolutionary change in terms of international law, i.e., is a process that constitutes a new nomos. [p.82]

With this consideration of the significance of land-appropriation in international law, we have obtained the possibility of comprehending in terms of legal history and legal philosophy the basic event in the history of European international law – the land-appropriation of a new world. [p.83]

II – The Land-Appropriation of a New World

No sooner had the contours of the earth emerged as a real globe – not just sensed as a myth, but apprehensible as fact and measurable as space – than there arose a wholly new and hitherto unimaginable problem: the spatial ordering of the earth in terms of international law. The new global image, resulting from the circumnavigation of the earth and the great discoveries of the 15^th and 16^th centuries, required a new spatial order. Thus began the epoch of modern international law that lasted until the 20^th century. [p.86]

From the 16^th to the 20^th century, European international law considered Christian nations to be the creators and representatives of an order applicable to the whole earth. [p.86]

No sooner had the first maps and globes been produced, and the first scientific concept of the true form of our planet and of the New World in the West been established, than the first global lines of division and distribution were drawn. [p.88]

Global linear thinking has its own development and history. The most important examples of its numerous forms constitute a coherent progression from the discovery of America in 1492 to the American declarations of World War II. Yet, it would be misleading, in view of the obvious continuity of this progression, to disregard the fact that these lines and the various stages of global linear thinking obtained in mutually distinct spatial orders, and, accordingly, have very different meanings in terms of international law. [p.90]

For 400 years, from the 16^th to the 20^th Century, the structure of European international law was determined by a particular course of events: conquest of a new world.

The structure of the relation between the crown of Castile and the Roman Church would be inconceivable in principle, because the completely secularised international law now in force is based on the territorial sovereignty of states, each which might conclude its own concordat [with the Vatican], none of which recognises any spiritual authority with regard to international law, and all of which treat religious questions as purely internal state matters. These sovereign states divided the firm land among themselves and left the open sea free – free of the state, not open to occupation.

It is sufficient to note that the turn to the modern age in the history of international law was accomplished by a dual division of two lines of thought that were inseparable in the middle ages. These were the definitive separation of moral-theological from juridical-political arguments, and the equally important separation of the question of justa causa, grounded in moral arguments and natural law, from the typically juridical-formal question of Justus hostis, distinguished from the criminal, i.e., from becoming the object of punitive action. [121]

The decisive step from medieval to modern international law – from the theological system of thought predicated on the church to a juridical system of thought predicated on the state – lies in this dual division. [121]

INTERNATIONAL LAW AND SOVEREIGN STATES

Continental European international law since the 16^th century, the jus publicum Europaeum, originally and essentially was a law among states, among European sovereigns. This European core determined the nomos of the rest of the earth. [126]

‘Statehood’ is not a universal concept, valid for all times and all peoples. Both in time and space, the term described a concrete historical fact.

The altogether incomparable, singular historical particularity of this phenomenon called ‘state’ lies in the fact that this political entity was the vehicle of secularisation. [127]

This political entity [the sovereign state] upset the axis of the spatial order of the respublica Chrisitana of the Middle Ages, and replaced it with a completely different type of spatial order.

It was a true European achievement that every aspect of war was limited to conflicts between sovereign European states, and that war could be authorised and organised only by states. [p.141]

Obviously, international law permits only just wars. The justice of war no longer is based on conformity with the content of theological, moral, or juridical norms, but rather on the institutional and structural quality of political forms. [p.143]

A decisive step towards this great, new institutions called ‘state’ and the new interstate international law was taken in that these new, contiguous, and contained power complexes were represented as persons [see Hegel on this – end of Philosophy of Right]. This is how they obtained the quality that made the analogy between war and duel meaningful.

In human fantasy, they actually were sovereign persons, because they were the representative sovereigns of human persons, of the agents of old and newly crowned heads, of kings and princes not precisely specified. These kings and princes now could be ‘great men’, because they had become absolute. They separated themselves from church, feudal, estate, and all other medieval ties, thereby entering into ties of a new spatial order. [p.144]

Only through the personalisation of European territorial states did a jurisprudence of interstate jus inter gentes arise.

Through a consideration of this new spatial order of the earth, it becomes obvious that the sovereign, European, territorial state (the word ‘state’ always is understood in its concrete historical sense as characteristic of an epoch from about 1492-1890) constituted the only ordering institution at this time. [148]

NOMOS AND WAR

Hegel’s thesis [the state is a ‘realm of objective reason and morality’] has precisely the same meaning as what an experienced, but by no means extravagant statesman of the jus publicum Europaeum, Tallytrand, wrote in his memorandum on the continental blockade of 1805: All progress of the droits des gens, everything that mankind has developed thus far in what is called international law, consists of one singular accomplishment of continental European jurists and governments in the 17^th and 18^th centuries, an accomplishment that was perpetuated in the 19^th century: the rationalisation and humanisation of war. This meant that European war was limited among states and among armies organised by states. [149]

…state sovereigns ended such murderous assertions of right and questions of guilt. That was the historical and intellectual accomplishment of the sovereign decision. In reality, juridical interest no longer was concerned with the normative content of justice and substantive content of justa causa, but rather with form, procedure, and jurisdiction in international as well as domestic law. A simple question was raised with respect to the interminable legal disputes inherent in every claim to justa causa: Who decides? (the great Quis judicabit?). Only the sovereign could decide this question, both within the state and between states. [157]

But, in the interstate law of sovereigns, there is no highest instance or court of last resort over both parties, owing to the principle of the equality of sovereigns: par in parem non habet jurisdictionem [Equals have no jurisdiction over each other].

There can only be a decisionist answer: each sovereign state-person decides autonomously concerning just causa.

How should the question of just war be decided otherwise if there is no spiritual authority?

It must be remembered that the whole significance of the modern state consists in its having ended the whole struggle over justa causa, i.e. concerning substantive right and substantive justice understood in the early feudal-legal, estate-legal, or creedal-theological sense. [157]

The sovereign territorial state initiated war ‘in form’ – not through norms, but through the fact that it bracketed war on the basis of mutual territoriality, and made war on European soil into a relation between specific, spatially concrete, and organised orders, i.e. into a military action of state-organised armies against similarly-organised armies in the opposing side. [158]

Everything that can be said about the legitimacy of state wars lay in this new concept of ‘state’. A non-public war is a non-state war. Not only was it illegitimate; it was no longer war in the sense of the new international law. It could be anything else – rebellion, mutiny, breach of the peace, barbarism, and piracy – but not war in the sense of the new European international law. [158]

This [Gentili’s] was the first clear form of the juridical, as opposed to the theological treatment of international law. Silete theology in munere alieno! Exclaims Gentili, in order to remove theologians from discussion of the concept of war and to rescue a non-discriminatory concept of war. The state was established as the new, rational order, as the historical agency of detheologisation and rationalisation. The first stage of this juridical self-consciousness was attained in the thinking of two jurists: Bodin and Gentili. [159]

Practically speaking, everything hinged on the fact that war had become a ‘war in form’, une guerre en forme. If it was a war ‘in form’, neither the belligerents nor the neutrals had a right to argue about the justice of a war. All questions of ‘justice’ were reduced to this ‘form’. In practical-political terms, this meant that war conducted on European soil between equal and sovereign territorial states – purely state war – differed from war pursued against non-state, i.e. barbarian peoples or against pirates. As Vattel put it, a statesman who pursues a ‘formal’ war unjustly commits no crime in international law, but ‘at most a sin against his own conscience.’ [166-67]

The principle of the juridical equality of states made it impossible to discriminate between a state that pursues a just war and one that pursues an unjust war. This would make one sovereign a judge over another, and that would contradict the legal equality of sovereigns. [167]

This logic of an interstate international law was grounded in a balanced spatial structure of self-contained states, each with defined territorial limits and fixed borders.

Kant (and the unjust enemy)

In his doctrine of right […] (1797), Kant described an ‘unjust enemy’ as one ‘whose publicly expressed will (whether by word or deed) reveals a maxim by which, if it were made a universal rule, any condition of peace among nations would be impossible and, instead, a state of nature would be perpetuated.’

Every word of this maxim derives our closest attention, because this brings us to the core concept of the jus publicum Europeaum, the Justus hostis, and to its apparent counterpart, the hostis injustus…

As Kant says, the ‘unjust enemy’ is very dangerous, because the law has no ‘limits’ by anyone threatened by him or who feels threatened by him. How do we recognise this frightful enemy against whom our law has no limits? It is enough to say that there is a verbally expressed will, and that expression of this will reveals a maxim that justifies common action in order to maintain the freedom of the one who feels threatened. A preventative war against such an enemy would be considered to be even more than a just war. It would be a crusade, because we would be dealing not simply with a criminal, but with an unjust enemy, with the perpetuator of the state of nature. [169]

In the perspective of the jus publicum Europaeum, all land on the earth belonged either to European states or to those of equal standing, or it was land free to be occupied, i.e. potential state territory or potential colonies.

The sea remained outside any specific state spatial order: it was neither state nor colonial territory nor occupiable space. It was free of any type of state spatial sovereignty.

Thus, land and sea were divided into two separate and distinct global orders within the Eurocentric world order that arose in the 16^th century. For the first time in human history, the antithesis of land and sea became the universal foundation of a global international law.

This completely new antithesis of land and sea determined the big picture of a jus publicum Europaeum that sought to give its nomos to a world Europe had discovered geographically and measured scientifically. [172]

The connecting link between the different orders of land and sea became the island of England. This explains England’s unique position vis-a-vis this European international law. England alone took the step from a medieval feudal and terrestrial existence to a purely maritime existence that balanced the whole of the terrestrial world.

England thus completed its transition to the maritime side of the world, and determined the nomos of the earth from the sea. [173]

The English island remained a part or rather the centre of this European spatial order, but simultaneously distanced herself from the European continent and assumed the world-historical, intermediary position that for more than three centuries made her ‘of Europe, but not in Europe’.

But an equilibrium of sea powers divided the oceans and destroyed the balance of land and sea that had constituted the nomos of the earth in the jus publicum Europaeum. [173]

The English isle became the agency of the spatial turn to a new nomos of the earth, and, potentially, even the operational base for the later leap into the total rootlessness of modern technology. This was proclaimed in a new word, which, I believe, could have arisen only then, and only on the island of England – a word that thereafter became the signature of a whole epoch. The new word was Utopia […] [178]

The separation of firm land and free sea was the basic principle of the jus publicum Europaeum. This spatial order did not derive essentially from internal European land-appropriations and territorial changes, but rather from the European land-appropriation of a non-European new world in conjunction with England’s sea-appropriation of the free sea. [183]

Vast, seemingly endless free spaces made possible and viable the internal law of an interstate European order.

Every spatial order contains a bracketing for all its agents and participants – a spatial guarantee of its soil. This raises the core question of international law. On the one hand, changes of territorial possessions are unavoidable; on the other, territorial changes can become dangerous for the continuance of the common spatial order.

Every order of international law must guarantee, if it does not disavow itself, not the given territorial status quo of a particular historical moment, with all its many details and more or less contingent circumstances, but rather its fundamental nomos – its spatial structure, the unity of order an orientation. Thereby, it is not only possible, but often even necessary to recognise wars, feuds, reprisals, and applications of force of various kinds as a means of effecting changes. However, these methods and procedures are bracketed; they do not jeopardise the comprehensive spatial order as a whole. War does not disturb this order. But certain damaging and destructive methods and goals of pursuing war disturb the traditional bracketing of war. [186]

The essence of European international law was the bracketing of war. The essence of such wars was a regulated contest of forces gauged by witnesses in a bracketed space. Such wars are the opposite of disorder. They represent the highest form of order within the scope of human power. They are the only protection against a circle of increasing reprisals, i.e., against nihilistic hatreds and reactions whose meaningless goal lies in mutual destruction. The removal and avoidance of wars of destruction is possible only when a form for the gauging of forces is found. This is possible only when the opponent is recognised as an enemy on equal grounds – as a Justus hostis. [187]

The particularly difficult questions are raised with respect to definitive land-appropriations that occur on designated soil between members of a common spatial order of international law. The land-appropriation in such cases is internal to international law. It does not concern free soil outside the common spatial order, but rather the right of a hitherto recognised participant in international law. Thus, the territorial change is accomplished within a common spatial order and is concerned with soil that cannot be occupied freely. If the common spatial order, despite such a territorial change is not to be destroyed, then this change must remain within the total spatial order, must proceed in a certain manner and must be recognised accordingly. It must neither destroy nor disavow the spatial structure as a whole. The question of whether a territorial change would rupture the structure of an existing spatial order or whether it would be consistent with it can be decided only in common, i.e., by the order as a whole, which is not to say that the common decision of a formal and express act must issue from a central location. Without a common opinion and a common recognition, the community is destroyed on the spatial question. [189]

From the peace of Utrecht until the end of the 19^th century, the balance of the European powers constituted the foundation and the guarantee of European international law.

The collective agreements of the great European peace conferences -1648, 1713, 1814-15, 1856, 1878, 1885 (the Congo Conference) – define the individual stages in the development of this international law as a spatial order. By comparison, the deliberations and stipulations of the Paris Peace Conferences of 1918-19, which led to the treaties of Versailles, Saint-Germain, Tiranon and Neuilly, only apparently adhered to this tradition. In reality they lacked the concept of a concrete spatial structure. The earlier European conferences demonstrated that the interstate international law of Europe was grounded in a comprehensive Eurocentric spatial order, which, in common consultations and resolutions, had developed its methods and forms for all significant territorial changes and had given the concept of an equilibrium a beneficial meaning. [190]

[…] that recognition as a Great Power was the most important legal institution of international law with respect to land-appropriation. It signified the right to participate in European conferences and negotiations, which was fundamental for the reality of European interstate international law. In the 19^th century, this meant that Germany and Italy had the right to acquire colonies in Africa and the southern Pacific. In this respect, the Congo Conference of 1885 […] is an instructive example. [191]

COLONIALISM

A completely different problem from land-appropriation, which proceeded inside Europe in the form of changes in the political sphere regarding a state area with a common legal order of property and economy, was land-appropriation of free colonial soil outside Europe. This soil was free to be occupied, as long as it did not belong to a state in the sense of internal European interstate law. The power of indigenous chieftains over completely uncivilised peoples was not considered to be in the public sphere; native use of the soil was not considered to be private property. One could not speak logically of a legal succession in an imperium, not even when a European land-appropriator had concluded treatise with indigenous princes or chieftains and, for whatever motives, considered them to be binding. The land-appropriating state did not need to respect any rights to the soil existing within the appropriated land, unless these rights somehow were connected with the private property of a member of a civilised state belonging to the order of interstate, international law. [198]

International law considerations benefiting the property right of natives, such as those recognised in questions of state succession in the liberal age favouring property rights to land and acquired wealth, did not exist on colonial soil.

The special territorial status of colonies thus was as clear as was the division of the earth between state territory and colonial territory. This division was characteristic of the structure of international law in this epoch and was inherent in its spatial structure.

Clearly, to the extent that oversees colonial territory became indistinguishable from state territory, in the sense of European soil, the structure of international law also changed, and when they became equivalent, traditional, specifically European international law came to an end. [199]

The logic of the concrete order of European international law was based primarily on sovereign, territorially defined states ruled by central governments.

The centralised European state transformed medieval legal concepts and legal powers, permeated with personal ties if loyalty, into the closed territoriality of a sovereign state with substantive and calculable norms. [210]

Pt. IV The question of the new nomos of the earth

The last common land-appropriation of non-European soil by the European powers, the last great act of a common European international law, also occurred during these years of the last bloom of the jus publicum Europaeum. It concerned African soil. Simultaneously, between 1870 and 1900, Asiatic countries, Japan most prominently, entered step by step upon the scene, first in treaty relations, then in administrative associations such as the postal union, and, finally, as equal participants in the total order of European international law. On African soil, however, European nations competed in sending research expeditions and founding colonial societies. [214]

The culmination of this race for legal rights, legal titles, and occupation was a great international land-appropriation congress – the Congo Conference in Berlin (1884-85) […] The chairman was Bismarck, who proved to be the last statesman of European international law. The result was the Congo Act – a remarkable final document of the continuing belief in civilisation, progress, and free trade, and of the fundamental European claim based thereon to the free, i.e., non-state soil of the African continent open for European land-appropriation. [216]

This Congo Conference formulated the rules of a European land-appropriation of African soil in line with the prudent standard of the sovereignty of any state. [217]

Since the end of the 19^th century, European international law increasingly had tended to consider all areas under state sovereignty – motherland as well as colonies – as state territory. However, the spatial structure of traditional and specifically European international law was based on the distinction between European state territory and non-European soil. But if the status of state territory in the sense of European international law – European soil – no longer was distinguishable from overseas, colonial – non-European – soil, then the whole spatial structure of European international law had to be abandoned, because the bracketing of internal, interstate European wars had an essentially different content than did the pursuit of colonial wars outside Europe. [220]

‘It is clear that the origin of the sovereignty of the independent (Congo) state derives neither from the 400 treaties of Stanley with the African chieftains nor from the recognition of the Great Powers, but rather from the fact of occupation itself, and that the inhabitants of this area were until now not organised as a state in our sense of the word’.

This statement makes clear what the claim to the legal title of ‘effective occupation’ really meant: the rejection of the legal title of ‘recognition’, grounded in the community and solidarity of international law, and the shattering of the comprehensive spatial order that such a legal title embraced. [223]

By claiming ‘effective occupation’ in order to acquire the Congo area as a colony, Belgium, a small European state that owed its existence and its protected status to recognition accorded by the Great Powers, opted out of the spatial order of European international law. [223]

We must bear in mind that the binding power of an obligation of sovereign states in international law cannot depend on the problematic acquiescence of otherwise free sovereigns, but rather must be determined by common membership in a defined space, i.e., must be based on the comprehensive effect of a spatial order.[225]

We will see later how the idea of a Eurocentric spatial order was abandoned completely in the land-divisions of the 1919 Paris administrative conferences of the League of Nations.

DISSOLUTION OF THE JUS PUBLICUM EUROPAEUM (1890-1918)

The decline of the jus publicum Europaeum into a universal world law lacking distinctions no longer could be stopped. The dissolution into a general universality simultaneously spelled the destruction of the traditional order of the earth. It was replaced with an empty normativism of allegedly recognised rules, which, for a few decades, obscured consciousness of the fact that a concrete order of previously recognised powers had been destroyed and that a new one had not yet been found. [227]

The core of the new problem lay in the fact that, instead of a generalised international law lacking any spatial concept, several different spheres of international law appeared on the scene, at the same time that the great problem of a new spatial order of the earth from the West – from America – became evident. [231]

By comparison with the second Hague Convention of 1907, the atmosphere, the ambience of the First Hague Peace Convention of 1899 was still purely European. At the Second Hague Convention, given the number and role of American and Asiatic participants, it was clear that in less than ten years a great step had been taken from a jus publicum Europaeum to an international law no longer European in the former sense. [231]

Rivier [Alphonse] expressly emphasises the European origin and character of the ‘international law of civilised states’, and pointedly states that ‘European international law… is still today a correct designation, insofar as Europe is, in fact, the continent of origin of our international law.’ ‘However’, he says, ‘our community of nations is not a closed community. Just as we opened the door to Turkey, so it is open to still other states, if they have reached a level of civilisation analogous to ours. Through treaties, which grow in frequency and significance, gradually the states of Asia as well as of Africa and Polynesia will be drawn into a partially legal community.’ [232]

This, then, was the total picture, which was as much a symptom as a document that clearly manifested the moment of transition from a European to a no-longer European international law. [233]

Without being aware of it, towards the end of the 19^th century European international law had lost the consciousness of the spatial order of its former order. Instead, it had adopted an increasingly more superficial notion of a universalising process that it naively saw as a victory of European international law. It mistook the removal of Europe from the centre of the earth in international law for Europe’s rise to the centre […] Jurists believed that Europe was being complimented by the reception of non-Europeans, and did not notice that, in fact, they were loosening all the foundations of a reception, because the former order – good or bad, but in any case conceived of as a concrete order, above all as a spatial order, by a true community of European princely houses, states, and nations – had disappeared. What appeared in its place was no ‘system’ of states, but a collection of states randomly joined together by factual relations – a disorganised mass of more than 50 heterogeneous states, lacking any spatial or spiritual consciousness of what they once 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 ‘civilisation’ could provide any concrete homogeneity. [234]

The Disorientation of Juridical Thinking [234]

[…] over, under and beside the state-political borders of what appeared to be a purely political international law between states spread a free, i.e., non-state sphere of economy permeating everything: a global economy. [235]

In the idea of a free global economy lay not only the overcoming of state political borders, but also, as an essential precondition, a standard for the internal constitutions of individual member states of this order of international law; it presupposed that every member state would establish a minimum of constitutional order. This minimum standard consisted of the freedom – the separation – of the state-public sphere from the private sphere, above all, from the non-state sphere of property, trade and economy. [235]

The general movement to freedom, a termination of traditional orientations and, in this sense, a total mobility of the most intensive sort – a general disorientation – se the European world on a new axis, and hurled it into other currents of power in which state-centred legal positivism proved to be completely helpless internally. This explains why the dualism of international law and national law, i.e., the dualism of domestic and foreign, was considered to be the central problem and was discussed in detail, whereas the dualism of interstate-political and international-economic law remained unnoticed. Precisely here – in the economy – the old spatial order of the earth lost its structure. What essentially did it mean when other, non-European states and nations from all sides now took their place in the family or house of European nations and states? [237]

That a family or community of European states and nations suddenly opened the doors of its house to the whole world was no mere quantitative expansion and enlargement, but rather a transition to a new plane. [237]

With this rejection of international law, Europe stumbled into a world war that dethroned the old world from the centre of the earth and destroyed the bracketing of war it had created. [239]

The League of Nations and the Problem of the Spatial Order of the Earth

[…] this world conference [Paris peace conf] in no sense created a new world order. It left the world in its earlier disorder, eliminated only two European Great Powers – two pillars of the former spatial order – and undertook a redivision of European territory. Whereas European conferences in preceding centuries had determined the spatial order of the earth, at the Paris Peace Conference, for the first time, the reverse was the case: the world determined the spatial order of Europe. [241]

This means that a completely disorganised world attempted to create a new order in Europe. The redivision of European soil, imposed on the European continent by a world conference, was to be safeguarded by a Volkerbund, a Societe des Nations, a League of Nations. [241]

Whereas the respublica Christiana of the European Middle Ages had comprised a true spatial order, the League of Nations from 1919 to 1939 was a typical example of the fact that no comprehensive order of international law can be founded without a clear idea of a spatial nomos. […] The essential cause of the failure of the League was that is lacked any decision with respect to, or even any idea of, a spatial order. [243]

The development of the planet finally had reached a clear dilemma between universalism and pluralism, monopoly and polypoly. The question was whether the planet was mature enough for a global monopoly of a single power or whether a pluralism of coexisting Grossraume, spheres of interest, and cultural spheres would determine the new international law of the earth. [244]

In reality, the problem of the relation between the League and Europe was the problem of the relation between the League and the Western Hemisphere. In turn, owing to the overwhelming economic and political power of the US, this problem was, above all, the relation between the League and the US. [251]

Once the priority of the Monroe Doctrine – the traditional principle of Western Hemisphere isolation, with its wide ranging interpretations – was asserted in Geneva, the League abandoned any serious attempt to solve the most important problem, namely the relation between Europe and the Western Hemisphere. […] The League thus lacked jurisdiction or authority to deal with relations between Western Hemisphere states or even between a European state and one in the American spatial sphere. [254]

The Transformation of the Meaning of War [259]

The First World War began in August 1914 as a European state war in the old style. The warring powers mutually considered themselves to be equally legitimate and sovereign states.

But soon after the war began, the first signs of a transformation of war became evident. [259]

Two Versailles treaty articles contained significant signs of a new concept of war, in that they deviated from traditional European international law: Art. 227, which indicted the former Kaiser, Wilhelm II; and Art. 231, the so-called war guilt article. […] In international law […] they must be considered to be a symptom of, if not a precedent for a conceptual change. Historically speaking, Art. 228 should be considered together with Art. 227, although the former deals exclusively with war crimes in the old sense, whereas the latter already contains new type of war that is considered to be a crime. [260]

War Crimes in the old sense: War between states that mutually recognise each other as sovereign and that practice jus belli with respect to each other cannot be a crime, at least not in the criminal sense of the word. As long as the concept of justus hostis is in effect, war between states cannot be criminalised, and the term ‘war crimes’ cannot mean that war as such is a crime. […] In classical European international law, ‘war crimes’ specifically refers to crimes committed during hostilities, primarily by members of the forces of a belligerent state. War crimes are offences against law in war, of jus in bello […]. These norms presuppose that war is permitted, and that both sides are equally just. If war as such is outlawed or becomes a crime, these norms must change fundamentally.

Articles 228-230 of the Versailles Treaty […] are concerned with this type of war crimes, i.e., crimes in the sense of violations of jus in bello. However, in at least one important respect these peace treaties contained an innovation in terma of the international law that governed before 1914, namely that the vanquished state was obligated to turn over its own citizens who committed war crimes. This constituted a serious and fundamental change with respect to a basic legal institution: amnesty. [262]

In 1919, it was not difficult for Art.227 to be criticised and to be refuted according to both traditional European international law and criminal law. European international law did not recognise international jurisdiction of one state over another or of one sovereign over another. […]

PART V: APPENDIX: THREE CONCLUDING COROLLARIES

APPROPRIATION/DISTRIBUTION/PRODUCTION: AN ATTEMPT TO DETERMINE FROM NOMOS THE BASIC QUESTIONS OF EVERY SOCIAL AND ECONOMIC ORDER

The scholarly treatment of questions of social like is divided into juridical, economic, sociological, and other areas of specialisation. But the need for a comprehensive consideration that acknowledges the inherent relation among these different disciplines is becoming more evident. [324]

To deal with this problem, we will attempt first to apprehend the original meaning of the word nomos and then to ascertain elementary and true categories that are both basic and inclusive. […] the general application should overcome the limitations of specialisation, without denying the achievements in various disciplines.

The Greek noun nomos comes from the Greek word nemein. Such a noun is a nomen actionis, i.e., it indicates an action as a process whose content is defined by the verb.

The first meaning of nemein is nehmen [to take or to appropriate]. The German word nehmen has the same linguistic root as the Greek word nemein. […] Thus, the first meaning of nomos is appropriation. [326]

The second meaning of nemein is teilen [to divide or distribute]. Accordingly, the second meaning of nomos is the action and process of division and distribution – an Ur-teil and its outcome.

Thomas Hobbes’ Leviathan (1651) contains a classic passage: ‘Seeing therefore the introduction of propriety is an effect of commonwealth, which can do nothing but by the person that represents it, it is the act only of the sovereign; and consisteth in the laws, which none can make that have not the sovereign power. And this they well knew of old, who called that nomos, that is to say, distribution, which we call law; and defined justice, by distributing to every man his own.’ [part II ‘Of Comonwealth’ ch.xxiv] [see Nancy on Justice above (last section of Globalisation)]

Thus ‘law’, understood in the sense of the Anteil [part or share] that each gets, the suum cuique, belongs to the second meaning of nomos.

The third meaning of nemein is weiden [literally, pasturage]. This is the productive work that normally occurs with ownership.

Each of these three processes – appropriation, distribution and production – is part and parcel of the history of legal and social orders. [327]

In every stage of social life, in every economic order, in every period of legal history until now, things have been appropriated, distributed, and produced.

The major problem is the sequence of these processes, which has changed often in accord with how appropriation, distribution and production are emphasised and evaluated, both practically and morally […].

The history of peoples, with their migrations, colonisations, and conquests, is a history of land-appropriation. […] Land appropriation is always the ultimate legal title for all further division and distribution, thus for all further production. It is what John Locke called radical title. [328]

Before what has been appropriated through conquest, discovery, expropriation, or some other way can be distributed, it must be numbered and weighed, as in the ancient sequence: numbered/weighed/divided.

When the numbering and weighing of what has been appropriated is completed, the process of distribution raises new and further questions.

For a socialist like Lenin, the idea that imperialistic expansion, i.e., appropriation, especially land-appropriation, should precede distribution and production was medieval, even atavistic, reactionary, opposed to progress, and, ultimately, inhuman. [331]

[…] socialism poses the social question as such, and wants to answer it as such. What then is the social question? In which sequence of the three basic categories of nomos does it move?

Not only radical socialism or communism, but also the concept of the ‘social’ that all political parties in contemporary European democracies have adopted in some way, at least as an adjective, is dedicated to a program of distribution and redistribution. [321]

[…] precisely because socialism raised the question of the social order as one of division and distribution, it once again raised the old problem of the sequence and evaluation of the three original processes of social and economic life.

These remarks on socialism and imperialism are intended only to indicate the usefulness of the three basic meanings of nomos and the problem of their sequence.

Despite differences in weight and sequence, the close proximity, sequence, and changing evaluation of appropriation, distribution, and production inherent in every concrete nomos and latent in all legal, economic, and social systems can become relevant again in a surprising change. [335]

Perhaps scholarly concern with this question can be grasped best by bringing the three categories of nomos in line with the very real and comprehensive question raised in every juridical consideration: world unity.

Has humanity today actually ‘appropriated’ the earth as a unity, so that there is nothing more to be appropriated? Has appropriation really ceased? Is there now only division and distribution? Or does only production remain? If so, we must ask further: Who is the great appropriator, the great divider and distributor of our planet, the manager and planner of unified world production?

Nomos penetrates archy and cracy. Neither can exist without nomos.

Word combinations with nomos have a different linguistic and ideational structure than do those with archy or cracy. Monarchy, for example, is the form of domination by which one rules; this one, monos, is the subject and bearer of domination or power. In democracy, demos is subject and bearer of cracy. By comparison, in the word ‘economy’ the oikos is not the subject and bearer of public housekeeping and administration, but rather the object and even the material. […] A word bound to nomos is measured by nomos and subject to it. [338]

The word nomos has undergone many changes in its more than three-thousand-year history, and it often is difficult to retain the big picture, given the etymological and semantic assessments at any particular time. The most important period was the transition from the nomadic age to the fixed household: the oikos.

Cicero translated the word nomos as lex. Lex belongs completely to the world of Roman law. But the consequences of this fusion with a Roman legal concept are still with us. A first-rate expert, the Spanish Romanist Alvaro d’Ors, rightly stated that the translation of nomos with lex is one of the heaviest burdens that the conceptual and linguistic culture of the Occident has had to bear. Anyone familiar with the further developments of the law-state and with the present crisis of legality knows this to be true. [342]

[…] just as division precedes production, so appropriation precedes division; it opens the way to apportionment. [345]

No man can give, divide, and distribute without taking. Only a god, who created the world from nothing [NANCY EX NIHILO], can give and distribute without taking.

Everything on earth based on progress and development, in both the East and the West, now contains at its core a concrete and precise creed, whose principles of belief proclaim that the industrial revolution leads to an immeasurable increase in production. As a consequence, appropriation becomes outmoded, even criminal, and division is no longer a problem, given the abundance. There is only production, only the problem-less fortune of pure consumption. No longer are there wars and crises, because unchained production no longer is partial and unilateral, but has become total and global. In other words, like bees, mankind finally has found its formula in the beehive. Things govern themselves; man confronts himself; wandering in the wilderness of alienation has ended. In a world created by man for himself – a world of men for men (and unfortunately sometimes against men) – man can give without taking.

THE NEW NOMOS OF THE EARTH

I speak of a new nomos of the earth. That means that I consider the earth, the planet on which we live, as a whole, as a globe, and seek to understand its global division and order.

Appropriation, distribution and production are the primal processes of human history, three acts of the primal drama. [351]

There always has been some kind of nomos of the earth. In all the ages of mankind, the earth has been appropriated, divided, and cultivated. But before the age of the great discoveries, before the 16^th Century of our system of dating, men had no global concept of the planet on which they lived. Certainly, they had a mythical image of heaven and earth, and of land and sea, but the earth still was not measured as a globe, and men still had not ventured onto the great oceans. [NB. NANCY’S DISCUSSION OF THE BECOMING WORLD OF THE WORLD. THERE IS NOTHING OUTSIDE THE WORLD. NO BEYOND OF THE WORLD. JUST THE IMMANENCE OF THE WORLD TO ITSELF].

By the occupied earth (in Greek, the so-called oikonome), they understood only their own empire. That was the nomos of the earth in the first stage, when men as yet had no global concept of their planet and the great oceans of the world were inaccessible to human power. Their world was purely terrestrial. Every powerful people considered themselves to be the centre of the earth […]

The first nomos was destroyed about 500 years ago, when the great oceans of the world were opened up. The earth was circumnavigated; America, a completely new, unknown, not even suspected continent was discovered. A second nomos of the earth arose from such discoveries of land and sea. […] The discoverers were Europeans, who appropriated, divided and utilised the planet. Thus, the second nomos of the earth became Eurocentric. […] The Eurocentric structure of nomos extended only partially as open land-appropriation, and otherwise in the form of protectorates, leases, trade agreements, and spheres of interest; in short, in more elastic fomrs of utilisation.

The main characteristics of this second nomos of the earth lay first in its Eurocentric structure and second in that, different from the first, still mythical image of the world, it encompassed the oceans. Thus it already was global, but still distinguished between land and sea. The firm land was divided into states, colonies, protectorates, and spheres of influence. By contrast, the sea was free. It could be freely exploited by all states […] it had no borders and was open.

The Eurocentric nomos of the earth lasted until World War I.

As a result of World War I, this Eurocentric nomos of the earth was destroyed. Today (1954), the world in which we live is divided into two parts, East and West, which confront each other in a cold war and, occasionally, in hot wars. That is the present division of the earth.

Where do we stand today? The earlier balance based on the separation of land and sea has been destroyed. Development of modern technology has robbed the sea of its elemental character. A new, third dimension – air-space – has become the force-field of human power and activity. Today, many believe that the whole world, our planet, is now only a landing field or an airport, a storehouse of raw materials, and a mother ship for travel in outer space. That certainly is fantastic. But it demonstrates the power with which the question of the new nomos of the earth is being posed. [354]

What might be the form of this new nomos? There are three possibilities. The first, and apparently simplest, would be that one of the two partners in the present global antithesis would be victorious. The dualism of East and West then would become only the last stage before an ultimate, complete unity of the world – the last round, the final step, so to speak, in the terrible rings to a new nomos of the earth. The victor would be the world’s sole sovereign. He would appropriate the whole earth – land, sea, and air – and would divide and mange it according to his plans and ideas.

[…] Given the effectiveness of modern technology, the complete unity of the world appears to be a foregone conclusion. [354]

Another possibility might be an attempt to retain the balance structure of the previous nomos, and to maintain it in a way consistent with contemporary technical means and dimensions. That would mean that England’s former domination of the oceans be expanded to a joint domination of sea and air, which only the United States is capable of doing. America is, so to speak, the greater island that could administer and guarantee the balance of the rest of the world.

The third possibility is also based on the concept of a balance, but not one sustained and controlled by a hegemonic combination of sea and air power. A combination of several independent Grossraume or blocs could constitute a balance, and thereby could precipitate a new order of the earth.

It would be well if the global perspectives of these three possibilities were to become generally known. Most of those considering this frightful problem rush blindly toward a single sovereign of the world. That idea certainly has primitive simplicity, but it must not be permitted to displace the other possibilities. The second possibility [VERY MUCH LIKE THE END OF HISTORY IN FUKUYAMA], continuation of the former hegemonic balance structure, has the greatest chance of accepted tradition and custom on its side. The third possibility [A DIVISION LIKE THE CLASH OF CIVILISATIONS THESIS], an equilibrium of several independent Grossraume, is rational, if the Grossraume are differentiated meaningfully and are homogeneous internally. [355]

The new nomos of our planet is growing irresistibly. Many see therein only death and destruction. Some believe that they are experiencing the end of the world. In reality, we are experiencing only the end of the former relations of land and sea. To be sure, the old nomos has collapsed, and with it a whole system of accepted measures, concepts, and customs. But what is coming is not therefore boundlessness or a nothingness hostile to nomos. Also in the timorous rings of old and new forces, right measures and meaningful proportions can originate.

Also here are gods and rules/Great is their mass.

***

◊

RADICAL TITLE

Appropriation/distribution/production: an attempt to determine from nomos the basic questions of every social and economic order

The Greek noun nomos comes from the Greek verb nemein. Such a noun is a nomen actionis, i.e. it indicates an action as a process whose content is defined by the verb. Which action and process is then indicated by nomos? Quite obviously, it is the action and the process of nemein.

The first meaning of nemein is nehmen [to take or to appropriate]. The German word nehmen has the same linguistic root as the Greek nemein. If the noun nomos is a nomen actionis of nemein, then the first meaning of nomos indicates a nehmen Just as logos [speech, word, or reason] is the nomen actionis of legein [to gather or to speak], and tropos [a figure of speech or turn of phrase] is the nomen actionis of trepein [to turn], so nomos indicates an action and a process whose content exists in a nemein. […] Thus the first meaning of nomos is appropriation. [326]

The second meaning of nemein is teilen [to divide or distribute]. Accordingly, the second meaning of nomos is the action an process of division and distribution.

The first meaing of nomos as appropriaiton has long been forgotton in jurisprudence. However, no prominent legal scholar has forgotten this second meaning.

[…]

The third meaning of nemein is weiden [literally, pasturage]. This is the productive work that normally occurs with ownership. [327]

Each of these three processes – appropriation, distribution, and production – is part and parcel of the history of legal and social orders. In every stage of social life, in every economic order, in every period of legal history until now, things have been appropriated, distributed, and produced. Prior to every legal, economic, and social order, prior to every legal, economic, or social theory are these elementary questions: Where and how was it appropriated? Where and how was it divided? Where and how was it produced?

The major problem is the sequence of these processes, which has changed often in accord with how appropriation, distribution, and production are emphasised and evaluated, both practically and morally, in human consciousnes.

Until the 18th century industrial revolution, the order and sequence of these processes were unequivocal, in that any appropriation was recognised as the precondition and foundation for any further distribution and production.

Even Kant’s legal theory takes as a principle of legal philosophy and of natural law that the first substantive acquisition must be land. This land, the foundation of all productivity, at some point must have been appropriated by the legal predecessors of the present owners. [328]

The history of peoples, with their migrations, colonisations, and conquests, is a history of land-appropriations. […] Land-appropriation is always the ultimate legal title for all further divisions and distributiuons, thus for all further production. It is what Johnj Locke called radical title. As a 17th century Englishman, Locke had in mind the land-appropriation of England by William the Conqueror (1066).

[…]

Before what has been appropriated through conquest, discovery, expropriation, or some other way can be distributed, it must be numbered and weighed, as in the ancient equence: numbered/weighed/divided. The mysterious writing on the wall in the Book of Daniel – the inscription MENE, TEKEL, UPHARSIN – announces an immediate and present appropriation and distribution of the land (of the Chaladeans) by the Medes and the Persians.

Lenin and Chamberlain (the sequence)

One of the strongest impressions, perhaps the most decisive on the Russian immigrant and professional revolutionary Lenin during his soujourn in England, was not the result of an economic analysis of production relations, but of a late 19th Century formulaiton of the international political program of the English imperialist Joseph Chamberlain. [330]

Imperialism said Chamberlain is the solution to the social question. At that time, this meant a program of colonial expansion and the precedence of appropriation before distribution and production. […] IN Lenin’s view, this was precisely the historical death sentence of imperialism in general and English imperialism in particular. The reason was that this Anglo-Saxon imperialism was nothing more than theft and plunder, and the word ‘plunder’ already was sufficient for moral condemnation.

Yet, precisely because socialism raised the question of the social order as one of division and distribution, it once again raised the old problem of the sequence and evaluation of the three original processes of social and economic life. Even socialism cannot escapre the fundamental question of the problematic sequence of appropriation, distribution, and production.

[…]

He [Marx] concentrated the whole weight of his attack on the expropriation of the expropriators, i.e., on the precedure of appropriation. IN place of the old right of plunder and of the primitive land-apprpriations of pre-industrial times, he situated appropriation of the total means of production: the great modern industry-appropriation.

If the essence of imperialism lies in the precedence of appropriation before distribution and production, then a doctrine such as expropriation of the expropriators is obviously the strongest imperialism, because it is the most modern. [334]

We should abolish all appropriation because it is inhuman and historically obsolete.

Has humanity today actually ‘appropriated’ the earth as a unity, so that there is nothing more to be appropriated [FULL DISCLOSURE]? Has appropriation really ceased? Is there now only division and distribution? Or does only production remain? If so, we must ask further: Who is the great appropriator, the great divider and distributor of our planet, the manager and planner of united world production? This question should warn us against ideological short-circuits.

NOMOS – NAHME – NAME

Nomos penetrates archy and cracy. Neither can exist without nomos.

[…]

The word nomos has undergone many changes in its more than three-thousand-year history, and it often is difficult to retain the big picture, given the etymological and semantic assessments at any particular time.

The most important period was the transition from the nomadic age to the fixed household: the oikos. This transition presupposed a land-appropriation which, by its finality, distinguished itself from the perennially provisional appropriations and divisions of the nomads.

Land-appropriation is a presupposition of land-division, which determines the broader stable order. In no way is the nomos limited to the stable and lasting order established by the land-appropriation.

[…] just a division precedes production, so appropriation precedes division; it opens the way to apportionment. It is not division – not the division primaeva – but apprpriation that comes first. Initially, there was no basic norm, but a basic appropriation. No man can give, divide, distribute without taking.

Only a god, who created the world from nothing, can give and distribute without taking.

Despite all the remaining ideological antitheses, the leading world powers of the West and the East are united in their rejection of colonialism. in concreto, colonialism here means the land- and sea-appropriations of the age of great discoveries of the four hundered years of Eurocentric international law. The odium of colonialism today concerns the European nations. At its core, it is nothing other than the odium of appropriation.

Allegedly, no longer anythiong is taken, but only divided and developed.

An important represntative of political science at a leading unicversity in the US recently wrote me: ‘Land-appropriation is over and done with’. I replied that it has become even more serious with the appropriation of space.

We have no right to close our eyes to the problem of appropriation, and to refuse to think any more about it, because what one today calls world history in the West and the East is the history of the development in objects, means, and forms of appropriation interpreted as progess.

This development proceeds from the land-appropriations of nomadic and agrarian fedudal times to the sea-appropriations of the 16th to the 19th century, over the industry-appropriaitons of the industrial-technical age and its distinction between developed and undevelopped areas, and, finally to the air-appropriations and space-appropriations of the present.

ON AN-ARCHY

Intro to Nancy’s Creation of the World (Francois Raffoul & David Pettigrew):

The immanence of the world signifies, in the first place, that there is no model for the world, since the world signifies, in the first place, that there is no model for the world, since the world is no longer reduced to or adjusted to a representation or to a principle: the world is an-archic. Without an exterior principle, it therefore can only refer to itself, and its meaning only arises from itself. It is absolutely free from all reference to an exterior: this is why the world’s immanence is ab-solute, detached, without connection. Nancy thus speaks of ‘the’ world, ‘absolutely’; this absolutisation of the world being one of the senses of what we refer to as ‘world-forming’. The world is an absolute, since it is no longer relative to another world. The sense of the world manifests this immanence, because the sense of the world is referred to a making-sense, which is the world as such: the world makes sense of itself by itself.

[…]

For Nancy […] a history that has begun itself from itself is deprived of ground, constituting the aporia of a beginning without reason and foundation: Yet, paradoxically, this withdrawal of ground is the very ground of the history that has begun from itself. ‘Is it possible or not to assume the non-foundation of the West as the reason for its own history? And since this history becomes the history of the world: is it possible or not to assume the non-foundation of the history of the world? This means: is it possible to make history, to begin again a history -or History itself – on the basis of its non-foundation?’ (CW, 81). It is this lack of ground, this re-beginning and thus this undecidable, that Nancy reveals as he writes, ‘In this way, philosophy always institutes itself in a mixture of decision and indecision with respect to its own subject; and ‘deconstruction’ in sum is congenenital for it since it constructs itself on the understanding that it must be anterior to its edifice and even to its own plan’ (CW, 83)

CITY & PHILOSOPHY

Nancy, Being Singular Plural, p22

According to different versions, but in a predominantly uniform manner, the tradition put forward a representation according to which philosophy and the city would be (would have been, must have been) related to one another as subjects. Accordingly, philosophy, as the articulation of logos, is the subject of the city, where the city is the space of this articulation. Likewise, the city, as the gathering of the logikoi, is the common subject of philosophy, where philosophy is the production of their common logos. Logos itself, then contains the essence or meaning of this reciprocity: it is the common foundation of community, where community, in turn, is the foundation of Being.

HYPERDREAM

↵bibliographia

↵nomos (worldmaking)

**THE NOMOS OF THE EARTH, 1950 Carl Schmitt**

**The Nomos of the Earth (PDF)**