In mythical language, the earth became known as the mother of law. This signifies a threefold root of law and justice.

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.

Second, soil that is cleared and worked by human hands manifests firm lines, whereby definite divisions become apparent. Through the demarcation of fields, pastures, and forests, these lines are engraved and embedded. Through crop rotation and fallowing, they are even planted and nurtured. In these lines the standards and rules of human cultivation of the earth become discernable.

Third and last, the solid ground of the earth is delineated by fences, enclosures, boundaries, walls, houses, and other constructs. Then the orders and orientations of human social life become apparent. Then, obviously, families, clans, tribes, estates, forms of ownership and human proximity, also forms of power and domination, become visible.

In this way, the earth is bound to law in three ways. She contains law within herself, as a reward of labour; she manifests law upon herself, as fixed boundaries; and she sustains law above herself, as a public sign of order.

[45] For the most concrete determination of what one calls international law, any medieval enumeration and listing of contents is illuminating even today, because appropriating land and founding cities always is associated with an initial measurement and distribution of usable soil, which produces a primary criterion embodying all subsequent criteria.

All subsequent legal relations to the soil, originally divided among the appropriating tribe or people, and all institutions of the walled city or of a new colony are determined by this primary criterion. Every ontonomous and ontological judgement derives from the land. For this reason, we will begin with land appropriation as the primaeval act in founding law.

A land appropriation grounds law in two directions: internally and externally. Internally, i.e., within the land-appropriation group, the first order of all ownership and property relations is created by the initial division and distribution of the land.

Whether public or private, collective or individual, or both, ownership derives from this initial land-division; whether or not cadastral surveys are undertaken and land registers are established are later questions, and they concern distinctions presupposed by and derived from the common act of land-appropriation. [45]

To this extent, every land-appropriation internally creates a kind of supreme ownership of the community as a whole, even if the subsequent distribution of property does not remain purely communal, and recognises completely ‘free’ private ownership of the individual. [45]

Externally, the land-appropriating group is confronted with other land-appropriating or land-owning powers. In this case, land-appropriation represents a legal title in international law in two different ways. Either a parcel of land is extracted from a space that until then had been considered to be free, i.e., having no owner or master recognised byt the foreign law of the land-appropriating group, or a parcel of land is extracted from a formerly recognised owner and master, and thereby becomes the property of the new owner and master.

P.47. First, we must not think of land-appropriation as a purely intellectual construct, but must consider it to be a legal fact, to be a great historical event, even if, historically, land-appropriation proceeded rather tumultuously […]

Second, we must remember that, both externally and internally, this fundamental process of land-appropriation preceded the distinction between public and private law, public authority and private property, imperium and dominium. Land-appropriation thus is the archetype of a constitutive legal process externally (vis-a-vis other peoples) and internally (for the ordering of land and property within a country). It creates the most radical legal title, in the full and comprehensive sense of the term radical title.

This terrestrial fundament, in which all law is rooted, in which space and law, order and orientation meet, was recognised by the great legal philosophers.

According to Locke, the essence of political power first and foremost, is jurisdiction over the land.

Kant says: ‘First acquisition of a thing can only be acquisition of land.’ This ‘law of mine and thine that distributes the land to each man’, as he puts it, is not positive law in the sense of the later state codifications, or of the system of legality in subsequent state constitutions; it is, and remains, the real core of a wholly concrete, historical and political event: a land appropriation. [48]

Thus, in some form, the constitutive process of a land-appropriation is found at the beginning of the history of every settled people, every commonwealth, every empire. This is true as well for the beginning of every historical epoch. Not only logically, but also historically, land appropriation precedes the order that follows from it. It constitutes the original spatial order, the source of all further order and all further law. It is the reproductive root in the normative order of history. All further property relations – communal or individual, public or private property, and all forms of possession and use in society and in international law – are derived from this radical title.

[48-9] We are on the threshold of a new stage of human spatial consciousness and global order.

All pre-global orders were essentially terrestrial, even if they encompassed sea powers and thalassocracies. The original terrestrial world was altered in the Age of Discovery, when the earth first was encompassed and measured by the global consciousness of European peoples. This resulted in the first nomos of the earth.

from the appendix:

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 and process of division and distribution.

The first meaning of nomos as appropriation has long been forgotten 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 consciousness.

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 distributions, thus for all further production. It is what John 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 sequence: 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 sojourn in England, was not the result of an economic analysis of production relations, but of a late 19th Century formulation 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.

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, and, ultimately inhuman.

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.

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 escape 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 procedure of appropriation. IN place of the old right of plunder and of the primitive land-appropriations 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.

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 [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 appropriation 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 hundred 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 anything 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.