BENHABIB Schmitts Critique of Kant

8/9/2019 BENHABIB Schmitts Critique of Kant

1/27

http://ptx.sagepub.com/Political Theory

http://ptx.sagepub.com/content/40/6/688

Theonline version of this article can be foundat:

DOI: 10.1177/00905917124606512012 40: 688 originally published online 24 September 2012Political Theory

Seyla BenhabibCarl Schmitt's Critique of Kant : Sovereignty and International Law

Published by:

http://www.sagepublications.com

can be found at:Political TheoryAdditional services and information for

http://ptx.sagepub.com/cgi/alertsEmail Alerts:

http://ptx.sagepub.com/subscriptionsSubscriptions:

http://www.sagepub.com/journalsReprints.navReprints:

http://www.sagepub.com/journalsPermissions.navPermissions:

What is This?

- Sep 24, 2012OnlineFirst Version of Record

- Nov 8, 2012Version of Record>>

at Tartu University Library on February 7, 2013ptx.sagepub.comDownloaded from
http://ptx.sagepub.com/http://ptx.sagepub.com/http://ptx.sagepub.com/http://ptx.sagepub.com/content/40/6/688http://ptx.sagepub.com/content/40/6/688http://ptx.sagepub.com/content/40/6/688http://www.sagepublications.com/http://ptx.sagepub.com/cgi/alertshttp://ptx.sagepub.com/cgi/alertshttp://ptx.sagepub.com/subscriptionshttp://www.sagepub.com/journalsReprints.navhttp://www.sagepub.com/journalsReprints.navhttp://www.sagepub.com/journalsPermissions.navhttp://online.sagepub.com/site/sphelp/vorhelp.xhtmlhttp://online.sagepub.com/site/sphelp/vorhelp.xhtmlhttp://ptx.sagepub.com/content/early/2012/09/23/0090591712460651.full.pdfhttp://ptx.sagepub.com/content/40/6/688.full.pdfhttp://ptx.sagepub.com/http://ptx.sagepub.com/http://ptx.sagepub.com/http://online.sagepub.com/site/sphelp/vorhelp.xhtmlhttp://ptx.sagepub.com/content/early/2012/09/23/0090591712460651.full.pdfhttp://ptx.sagepub.com/content/40/6/688.full.pdfhttp://www.sagepub.com/journalsPermissions.navhttp://www.sagepub.com/journalsReprints.navhttp://ptx.sagepub.com/subscriptionshttp://ptx.sagepub.com/cgi/alertshttp://www.sagepublications.com/http://ptx.sagepub.com/content/40/6/688http://ptx.sagepub.com/


2/27

Political Theory40(6) 688713

2012 SAGE Publications

Reprints and permission: http://www.

sagepub.com/journalsPermissions.nav

DOI: 10.1177/0090591712460651http://ptx.sagepub.com

PTX40 6 10.1177/009059litical TheoryBenhabibPublications

rmission: http://www.urnalsPermissions.nav

1Yale University, New Haven, CT, USA

Corresponding Author:

Seyla Benhabib, Department of Political Science, Yale University, 115 Prospect St., Rosenkranz

Hall, Room 225, New Haven, CT 06520-8

Email: [email protected]

Carl Schmitts Critique

of Kant: Sovereignty

and International Law

Seyla Benhabib1

Abstract

Carl Schmitts critique of liberalism has gained increasing influence in the lastfew decades. This article focuses on Schmitts analysis of international law inThe Nomos of the Earth, in order to uncover the reasons for his appeal as acritic not only of liberalism but of American hegemonic aspirations as well.Schmitt saw the international legal order that developed after World War I,and particularly the criminalization of aggressive war, as a smokescreen tohide U.S. aspirations to world dominance. By focusing on Schmitts critique ofKants concept of the unjust enemy, the article shows the limits of Schmittsviews and concludes that Schmitt, as well as left critics of U.S. hegemony,misconstrue the relation between international law and democratic sover-eignty as a model of topdown domination. As conflictual as the relationshipbetween international norms and democratic sovereignty can be at times,this needs to be interpreted as one of mediation and not domination.

Keywordsinternational law, non-discriminating concept of war, the unjust enemy,cosmopolitanism, sovereigntism, Immanuel Kant, Carl Schmitt

Articles

http://ptx.sagepub.com/http://ptx.sagepub.com/http://ptx.sagepub.com/http://ptx.sagepub.com/


3/27

Benhabib 689

I. The Winds of WarFor Whom Do They Blow?

In 1922, Carl Schmitt published Political Theology: Four Chapters on the

Concept of Sovereignty.1Reissued in 1934 with a new Preface by Schmitt,

this text, along with The Concept of the Political(1932) and The Crisis of

Parliamentary Democracy (1923),2established Schmitt as one of the most

trenchant critics of the liberal democratic project. Schmitt documented not

only the sociological transformation of liberal parliamentarianism into the

rule of special interest groups and committees that eventually undermined

parliaments from functioning as deliberative bodies. He also drove home the

rationalistic fallacies of liberalism until its limit conceptsdie

Grenzbegriffewere uncovered. These limit concepts, in Schmitts view,constituted the secret and unthoughtfoundations on which the structure of

the modern state rested. Sovereignty is one such limit concept; government

by discussion, and the assumption that all opinions will eventually converge

through deliberation upon a rational outcome, are among the other unques-

tioned presuppositions of liberalism.

Schmitts sociological and philosophical critiques have proven formidable

and have inspired thinkers on the right as well as the left. From Otto

Kirchheimer and Walter Benjamin to Hans Morgenthau and Leo Strauss, toChantal Mouffe and Ernesto Laclau3, as well as many others in our times,

Schmitt is the minence griseto whom one turns when the liberaldemocratic

project is in deep crisis. There is no need here to document the extensive

Schmitt renaissance that has flourished in Europe as well as the United States

in the past decades. Instead, I would like to briefly recall some theses of

SchmittsPolitical Theologyin order to demarcate the continuities as well as

discontinuities between contemporary concerns that may be gathered under

political theology and Schmitts own preoccupations.There are at least three interrelated and not always clearly distinguished

theses in SchmittsPolitical Theology. First is a thesis in the history of ideas,

sometimes referred to by Schmitt as the sociology of concepts as well (PT,

45), and best expressed through the following claim: All significant con-

cepts of the modern theory of the state are secularized theological concepts

not only because of their historical developmentin which they were trans-

ferred from theology to the theory of the state, whereby, for example, the

omnipotent God became the omnipotent lawgiver (PT, 36). In the second

place, Schmitt explores legal hermeneutics, that is, the dialectic of the gen-

eral rule and the particular case, the law and the instances to which it applies.

In the third place, Schmitt develops a thesis about the construction and pre-

rogatives of sovereigntyas the seat of legitimacy in the modern state. What

http://ptx.sagepub.com/http://ptx.sagepub.com/http://ptx.sagepub.com/


4/27

690 Political Theory40(6)

resonates most in contemporary debates about political theology are neither

the first nor the second of Schmitts theses, but rather the third, that is, his

theory of sovereignty as the exception. It is as if the politicalZeitgeistof our

times has given new life to the famous opening lines of Schmitts Political

Theology, Sovereign is he who decides on the exception (PT, 5).

The concept of sovereignty has an internal as well as an external dimen-

sion: considered as a norm in domestic law, it refers to the highest source of

authority in a legal regime, and significant aspects of Schmitts work are

dedicated to analyzing the constitutional dilemmas of legality and legitimacy

that surround sovereignty.4

Sovereignty also has an international dimension: after the Treaty of

Westphalia (1648) that concluded Europes wars of religion, it means that aunitary political entity, whether a monarchy or a democracy, is recognizedby

other political units as an equal and interacts with them on the basis of certain

norms, laws and treaties. In the postSeptember 11th, 2001 world, many

scholars have turned to this dimension of Schmitts writings on external sov-

ereignty and international law.5While some see in this new twenty-first cen-

tury the spread and emergence of cosmopolitan norms, others argue that it is

the bid for power of the American imperium or of the sole rogue superpower

that drives the international conflicts of our age.Thus, in an article entitled A Just War? Or Just a War?: Schmitt, Habermas

and the Cosmopolitan Orthodoxy, William Rasch concluded with these

astonishing claims:

Call it dialectic of enlightenment, if you like, or just perverse irony, but

the resurrected spirit of that old Catholic, Carl Schmitt, is certainly

one of the Heines [meaning Heinrich HeineSB] of the present who

fight the completion of our contemporary Geistes Bastille, the mono-lithic cosmopolitan lawenvisaged by Habermas. . . . On one hand, in

the name of perpetual peace, Habermas advocated the perpetual war of

gentle compulsion and continuous police actions; on the other hand,

in the name of belligerent, homogenous [sicSB] particularity, Schmitt

urges on us the universal value and possibility of politics as both affir-

mation andopposition. Thus, Schmitt, the nationalist, might also be

Schmitt, the international multiculturalist, who offers those who

obstinately wish to resist the West a theoretical foothold.6 (first

emphasis in original; second emphasis added)

Published in 2000, Raschs article preceded the attacks on the World Trade

Center and the Pentagon of September 11th; the Afghan War; the war on Iraq;



5/27

Benhabib 691

Abu Ghraib, Guantanamo and much else. While Raschs judgment that Schmitt

could be named one of the Heines of the moment, is certainly an instance of

perverse irony (Rasch, 1683), nevertheless, he was correct in sniffing the

odor of the times, which would come to identify cosmopolitanism with

global imperialism and, in particular, with the project of U.S. world hegemony.

Carl Schmitt has since then, and even earlier, become the indispensable refer-

ence point for all those who want to unveil the hypocrisies, inadequacies, and

maybe even bankruptcy, of liberal democratic politics, at home and abroad.7

My goal in this article is to go to the root of Carl Schmitts critique of

liberal international law as being a ruse to hide hegemonic aspirations by

considering his neglected discussion of Kants concept of just war in The

Nomos of the Earth in the International Law of Jus Publicum Europaeum.8Contrary to what Rasch asserts, we will see that Schmitt is no innocent

defender of multiculturalism resisting the Western hegemon. He is an author-

itarian state theorist who wishes war to remain the sole prerogative of sover-

eign nation-states and who fights against international law restrictions on

aggressive war by denouncing the League of Nations, the KelloggBriand

pact and Woodrow Wilson for criminalizing war.

After examining the multiple layers at which Schmitts argument in his

Nomos of the Earthproceeds (II and III), I focus on a close reading of hiscritique of Kants concept of the unjust enemy (hostis injustus) in the

Metaphysical Elements of Justice(1799). Schmitt is not wrong in claiming

that Kants discussion presents a profound moral argument to limit thejus in

bello(right in war) but that it also contains certain slippages and ambiguities

that may justify humanitarian interventions such as to enable the building of

a liberal international order (IV). My approach is both criticalinterpretive

and reconstructive, in that I wish to engage Schmitts reading of Kant to draw

out broader issues pertaining to international law and sovereignty.In conclusion (V), I turn to contemporary discussions of these issues,

also raging in the U.S. Supreme Court, and argue that Schmitt, as well as

left critics of U.S. hegemony, misconstrue the relation between interna-

tional law and democratic sovereignty as if this were a model of topdown

domination. As conflictual as the relationship between international norms

and democratic sovereignty can be, it needs to be interpreted as one of

mediations and not one of domination.

II. Schmitts Nomos of the Earth

The Nomos of the Earth is a late work of Schmitts, first published in

1950, although some of the articles concerning these themes had appeared



6/27


throughout the 1940s.9 It is a magisterial work that establishes Schmitts

significance as an expert of international law. The text moves at three levels

at once, which we may characterize as the ontological, the real-political,

and the personal. At the ontological level, Schmitt is establishing a link

between Ordnungand Ortung(order and orientation), between the law

as nomosand the earth. Nomosis broader in meaning than just law and is

usually rendered as the commonality of thepolis, the content of the con-

stitution, laws and customs.10 In terms that cannot fail to remind one of

Heidegger, Schmitt writes of die elementaren Ordnungen ihres terres-

trischen Daseins (the elementary orders of mans terrestrial being), and he

adds, We seek to understand the normative order of the earth (Nomos, 6;

39). The German, however, speaks of a Sinnreich der Erde, possibly bet-ter translated as the domain of meaning of the earth.

These ontological theses about law as nomos, the earth and its meaning,

order and orientation have their sources in an old and ongoing debate that

Schmitt was involved in with neo-Kantians such as Hans Kelsen.11As Raphael

Gross explains in an illuminating article, Schmitt adopted the concept of

nomos, inherited from the political theology of German Protestantism, such

as advocated by Wilhelm Stapel, who in turn had developed this concept as

part of his theological confrontation with Judaism.12What is the source of theauthority of law: human will or reason? Or some more fundamental order that

precedeshuman acts of law-giving? Does the law express principles of human

justice, or is the law grounded in some other order that precedes but neverthe-

less constrains human justice? Schmitt is not a natural-rights theorist, and he

cannot respond to Kelsenian positivism by invoking natural law; rather, he

appeals to an order of the earth, and of place (Raum), as opposed to posi-

tivist understandings of law that see law as covering both earth and sea and as

emerging whenever the will of one must be brought under a law of freedomto coexist with the will of the other, to use a Kantian locution. Instead, for

him the German concept of law, Gesetz, is deeply implicated in the theologi-

cal opposition of Jewish law and Christian grace. (Nomos, 39; 70).13

At the level ofRealpolitik, the second half of Schmitts work engages in a

ruthless, but not always unjustified, polemic against Anglo-Saxon and par-

ticularly American attempts to develop a new law of nations. The modern

state formation in the West begins with the territorializationof space. The

enclosure of a particular portion of the earth and its demarcation from others

through the creation of protected boundariesand the presumption that all

that lies within these boundaries, whether animate or inanimate, belongs

under the dominion of the sovereignis central to the territorially bounded

system of states in Western modernity. In this Westphalian model, territorial



7/27

Benhabib 693

integrity and a unified jurisdictional authority are two sides of the same coin;

protecting territorial integrity is the obverse side of the power of the state to

assert its jurisdictional authority.

The modern absolutist states of western Europe were governed by the Jus

Publicum Europaeum as their international law. However, this model was

unstable from its inception, or in Stephen Krasners famous phrase, sover-

eignty is hypocrisy.14The discovery of the Americas in the fifteenth century,

the imperialist ventures into India and China, the struggle for domination

over the Indian Ocean and the nineteenth-century colonization of Africa

destroyed this form of state sovereignty and international law by chipping

away at its peripheries.15Not only the Wests confrontation with other conti-

nents, but the question whether the non-Christian Ottoman Empire belongedto the Jus Publicum Europaeum, showed the limitations of this order.

Though Schmitt himself is not far from idealizing this Westphalian moment

in the evolution of the law of the earth, his own account documents its

inherent limits and eventual dissolution. The deterritorializationof modern

states goes hand in hand with their transformation from early bourgeois

republics into European empires, be they those of England, France, Spain,

Portugal, Belgium, the Netherlands, or Italy.16

Accompanying these developments have been attempts to formulate a newlaw of nations to succeed the Jus Publicum Europaeum. Foremost among

these were the failed League of Nations efforts to devise a new legal spatial

order between 1919 and 1939 (Nomos, 225; 25758). For Schmitt, the deci-

sive problem in this periodeven more than that of the coloniesis the rela-

tionship of the United States to the League. As he puts it quite bitingly,

Once the priority of the Monroe doctrinethe traditional principle of

Western Hemisphere isolation, with its wide-ranging interpretationswas asserted in Geneva, the League abandoned any serious attempt to

solve the most important problem, namely the relation between Europe

and the Western Hemisphere. Of course, the practical interpretation of the

ambiguous Monroe Doctrineits application in concrete cases, its deter-

mination of war and peace, its consequences for the question of inter-

allied debts and problem of reparationswas left solely to the United

States. . . . Whereas the Monroe doctrine forbade any League influence in

American affairs, the Leagues role in European affairs . . . was codeter-

mined by these American member states. (Nomos, 224; 25455)

In a turn of phrase that could have flown from Jacques Derridas pen,

Schmitt concludes: The United States was, thus, formally and decisively not



8/27


presentin Geneva. But they were, as in all other matters, and hardly ineffec-

tively and very intenselypresentas well. There thus resulted an odd combina-

tion of official absenceand effective presence, which defined the relationship

of America to the Geneva Convention and to Europe (Nomos, 22425, my

emphasis; I used my own translation here since the English version has been

somewhat abbreviated).

Schmitts diagnosis of American exceptionalismits absent presence

with respect to the League of Nations, and to international organizations

and international law in general, is quite accurate, and in the period between

the Gulf War of 1993 and the Iraq War of 2003 has found fresh and recep-

tive audiences. It is this ambivalent relationship of American understand-

ings of sovereignty to a new law of nations that is at the source of thecontemporary concerns of Supreme Court Justices, vis--vis international

law.17 Indeed, the United States remains an absent presence, even today,

from the International Criminal Court.

While I find Schmitts commentary on the historical, geo-political, and

legal gyrations and inconsistencies of the United States as a world power

unobjectionable, we must also be clear that Schmitt critiques American

behavior not to offer a new law of nations but rather to undermine it alto-

gether by showing it to be based on hypocrisies. American hegemony may beeconomically and militarily irresistible but it is by no means juridically justi-

fied in his eyes.

Schmittspersonalinterest in this matterand this is the third level men-

tioned aboveis to destroy the legitimacy of the emergent world order

between 1919 and 1939, and in particular the criminalization of warthrough

the doctrine that wars of aggression are legal crimes. With this argument,

Schmitt is not only trying to save the honor of Kaiser Wilhelm II who was

rendered a war criminalby the Allies as a result of the Versailles Treaty of1919, but he is also trying to save his own honor, since he would refuse to

cooperate with the investigation of the Denazification Commission and would

have his own right to teach (venia legendi) revoked by the Allies after World

War II.18If the legal order that emerged in this period under the influence of

the League of Nations and the criminalization of aggressive war was based

upon juridical, moral, and geo-political hypocrisies and contradictions, then

how could the Nremberg legal order that resulted from the Third Reichs

defeat be anything but a continuation of this bankrupt order? It is in this con-

text that Schmitts attacks against the discriminating concept of war, and his

plea to restore the non-discriminating concept of war need to be evaluated,

although the preoccupation with these themes derive from his deeply seated

theoretical concerns and do not reflect motives of self-justification alone.



9/27

Benhabib 695

III. The End of the Pre-Modern

Doctrine of Just War

Schmitts eulogy to the Jus Publicum Europaeum in the first part ofNomos

emphasizes that this system neutralizes war by moving away from the medi-

eval notion of just war. In this transformation the enemy is no longer

viewed as inimicus but as justi hostes (categories which also return in

Schmitts concept of the political).19The enemy is not one with whom one

has religious, moral or existential conflictsan inimicusbut one with

whom it is possible to have potential or actual conflicts of interests.

Schmitt, however, is never consistent in his attempts to distinguish hostis

from inimicus, the public from the private enemy, because of his contentionthat the enemy is the one with whom one has the most intense kind of con-

flict. In the final analysis, this distinction leads back to his racially grounded

theory of the people as a Volksgemeinschaft. As Karl Lwith, one of the earli-

est and most penetrating observers of Carl Schmitt, notes:

On the one hand he must seize upon a substantiality which no longer

befits his own historical situation and from which enmity derives sub-

stantive content; on the other hand, as a modern, postromantic humanwho thinks far too occasionally to be able to believe in divinely willed

and naturally given distinctions, he must again relativize the substan-

tial presuppositions and shift his whole fundamental distinction into a

formal existentiality. As a consequence, his decisive formulations of

the friend-enemy distinction shift indecisively back and forth between

a substantialand an occasionalunderstanding of enmity and friend-

ship, so that we do not know whether what is at stake here is those of

like kind and those of different kind, or whether instead what is at stakeis simply those whoeither with one or against oneare occasionally

allied. Upon the shifting ground of this ambiguity Schmitt builds up

his concept of the political, whose essential feature is no longer life in

thepolisbut instead is simply thejus belli.20

On a more positive level, Schmitts reconstruction of the eventual decline

of just war, used by Christian theologians in their encounter with the New

World, is prescient (Nomos, 69ff.; 102ff.), and anticipates some of the best

work done by contemporary scholars of post-colonial theory.21But matters

are never simple with Schmitt, since he not only intends to criticize the medi-

eval doctrine ofjust warbut to denounce altogether the discriminatingcon-

cept of war that would outlaw wars of aggression.



10/27


Based on relations between states, writes Schmitt,

post-medieval European international law from the 16th to the 20th

century sought to repress the justa causa.The formal reference point

for determining just war no longer was the Churchs authority in inter-

national law, but rather the equal sovereignty of states. Instead ofjusta

causa, international law among states was based onjustus hostis.Any

war between states, between equal sovereigns, was legitimate. Given

this juridical formalization, a rationalization and humanizationa

bracketingof war was achieved for 200 years. (Nomos, 91; 121)

This concept of war is based upon the separation of moraltheologicalfrom juridicalpolitical premises, and the separation 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 (Nomos, 91; 121, emphasis in origi-

nal). Schmitt also names this the neutralized concept of war: All inter-

state wars upon European soil, which are carried out through the militarily

organized armies of states recognized by European law of nations

(Vlkerrecht), are just in the sense of the European law of nations of thisinter-statal period (Nomos, 115; 143, emphasis in original).

The international law of 1918 to 1939, by contrast, undermines these dis-

tinctions by outlawing wars of aggression, thereby also eliminating the dis-

tinction between hostis and inimicus, the public versus the private enemy.

Wars opposed to this new legal order become unjust wars, and the enemy

becomes a criminala criminal against humanity. Kant, the author of

Perpetual Peace, already anticipated something of these developments in

his confused concept of the unjust enemy.

IV. The Critique of Kant

No war of independent states against each other can be apunitive war(bellum

punitivum), writes Kant in his late work The Metaphysical Elements of Justice

of 1797.22In the state of nature, states possess both a right to go to war as well

as the right to retaliate for offenses committed against them (Kant,MEJ, 56,

116). In this condition, there is no judge to arbitrate among states, nor is there a

superior in relation to them,23and precisely because of this Kant concludes that

nor, again, can any war be either a war of extermination (bellum inter-

necinum) or of subjugation (bellum subjugatorium), which would be



11/27

Benhabib 697

the moral annihilation of a state. . . . The reason there cannot be a war

of subjugation . . . is rather the idea that the right of nations involves

only the concept of an antagonism in accordance with principles of

outer freedom by which each can preserve what belongs to it, but not

a way of acquiring, by which one states increase of power could

threaten others. (Kant,MEJ, 57, 117)

One can demand supplies and contributions from a defeated enemy, but

one cannot plunder its people, nor subjugate them, nor rob them of their

civil freedom (MEJ, 118). So great is Kants attempt to circumscribe war in

accordance with moral precepts respecting the dignity of the person and the

moral status of peoples, that he even prohibits states from using their subjectsin such a manner as would make them unfit to be citizens once hostilities

are concluded (MEJ, 117). This includes using people as spies, assassins,

poisoners, snipers and for spreading false rumors. Wars must be concluded by

treaties and prisoners must be exchanged without ransom.

It is clear that Kant is at pains to limit both the right to go to war (jus ad

bellum) and the right within war (jus in bello) in as much as possible to accord

with the principle of treating human beings as ends and never only as means.

Schmitt also praises Kants greatness and humanity (Nomos, 142; 170), butis greatly puzzled by the turn Kants argument then takes in paragraph 60 of

The Metaphysical Elements of Justice, when Kant introduces the concept of an

unjust enemy [der ungerechte Feind] (MEJ, 60, 118). Whereas the idea of

a non-punitive war among states is, in Schmitts terms, a non-discriminatory

concept of war, with the introduction of the concept of an unjust enemy,

Kants thought threatens to regress back to viewing war asjusta causaand to

see the enemy, the hostis, as a criminal. But who is the unjust enemy,

against whom the right of those who are threatened by him or who feel threat-ened by him have no limits?24(MEJ, 60, 118;Nomos, 141; 169).

Kants answer is that this is an enemy whose publicly expressed will

(whether by word or deed) reveals a maxim by which, if it were made a uni-

versal rule, any condition of peace among nations would be impossible and

instead a state of nature would be perpetuated (MEJ, 60, 119, my empha-

sis). As examples of this maxim, Kant only cites violations of public contracts,

but it is clear that he has a much more expanded notion of what this might

involve. And this is the source of Schmitts anxiety. Schmitt confidently

asserts that it is certainly not the opponent who has broken the rules of war

and has violated the right to war by perpetuating crimes and atrocities. [I

must add that I am not sure about how Schmitt arrives at this through a reading

of Kant but I will not pursue this point further here.] If freedom is threatened,



12/27


then by whom, and who will concretely decide? asks Schmitt. All this

remains open. . . . . And sounds like the old doctrine of just war . . . (Nomos,

141; 169).

As a jurist, Schmitt is right to be concerned with the distinction between

word and deed and to question whether words alone would suffice to make

one an unjust enemy. Is ideological propaganda by a state that supposedly

contradicts the established international order sufficient to declare it an

unjust enemy, for example? Think here of contemporary Iran. Is not Kants

principle dangerously expansive and vague in that it seems to eliminate dis-

tinctions between wars of words and wars of deeds?

There is a more direct way of introducing some content to Kants defini-

tion and this would involve reading this principle in the light of Kants earlierwork on Perpetual Peace of 1795. An unjust enemycould be interpreted as

one who would reject the three definitive, as opposed toprovisional, princi-

ples ofPerpetual Peace. These are: The Civil Constitution of Every State

should be Republican; The Law of Nations shall be founded on a Federation

of Free States; and The Law of World Citizenship Shall be Limited to

Conditions of Universal Hospitality (Kant [1795] 1923, 43446; 1994,

99108).25Any state that refuses to enter into a lawful condition with other

states, by explicitly refusing to acknowledge these principles, remains in astate of nature, that is, a state of hostility. That there is textual evidence

for my reading is provided by two further arguments of Kants.

First, since the freedom of allnations would be threatened by those who

deny these principles, other nations can wage war against them but cannot

make them disappear from the earth since this would be injustice against its

people, which cannot lose its original right to unite itself into a common-

wealth, though it can be made to adopt a new constitution that by its nature

will be unfavorable to the inclination for war (MEJ, 60, 119). A peoplecan be made to adopt a new constitution; in other words, regime changeto

make the unjust enemyrespect the principles of perpetual peace is permissi-

ble. Schmitt is not wrong then in seeing in Kants text the beginnings of a

vision of a liberal world order within which the range of regimes that would

be considered legitimate is narrowed to those that would respect the laws of

nations, defined through the principles of perpetual peace. But this answer

raises further difficulties: Are only republics to be tolerated in the new world

order then? How about empires such as the Chinese, for which Kant has some

kind words in other texts? Or non-sedentary and nomadic peoples who may

not want to be subjugated by European powers and whom Kant praises in

other writings? How extensive and intensive are the principles of perpetual

peace? Questions remain.26



13/27

Benhabib 699

Second, in the paragraphs following his discussion of the unjust enemy,

Kant returns to his idea of an association of states (ein Vlkerbund) that

would renounce the state of nature prevailing among states, and thereby also

give up the unilateral right to go to war (MEJ, 61, 119). As is well known,

Kant finds it quite difficult to articulate the exact political form of such an

association; he rejects the idea of a world-state; and wishes to defend the prin-

ciples of a world-republic and ends up with an association of severalstatesto

preserve peace, which can then be called a permanent congress of states,

which each neighboring state is at libertyto join (ibid., my emphasis). May

be then the unjust enemy is the one who refuses to join such an association

altogether; or who wishes to exit once having joined, or may be even a group

of states who form a competing association based on different principles, thushindering the development of world-society towards a condition of law.

I think that at least two readings of Kant are possible on these issues: on

one reading, the unjust enemywould be the one who would reject all three

definitive articles of perpetual peace as a package; on a second reading, some

states may reject some versions of Articles 1, 2, and 3 but may accept some

form of the law of nations and a peaceful federation.27In particular, not all

nations may be willing or able to adopt a republican constitution. Should

they also to be considered unjust enemies?It is hard to deny that in the obscurity of these passages we encounter some

of the paradoxes of a liberal law of nations in the Kantian sense. First and

foremost, nations must of their own accord wish to enter a pacific federa-

tion, that is, at a minimum, they must establish a condition of lawful coexis-

tence with each other such that conflicts can be adjudicated and the option of

war is severely limitedeven if not wholly eliminated. Schmitt, unlike Kant,

doubts there can ever be such a condition of legality among nations, based on

the authority of a neutral judge. For him, the political governs human actionsall the way down. Thus, rather than try and eliminate war among nations or

subject it to the judgment of only seemingly neutral instances, Schmitt recom-

mends that one accept the inevitability of war among sovereign states and treat

the enemy not as a criminal but as a worthy opponent. For Schmitt, interstate

wars are more like duels than wars. But Kant is more radical here: he sees wars

not as duels but as inflicting most harm on ordinary people who, unless they

live in a republic, are neither able to resist serving in the army nor resist losing

life and limb for the glory of sovereigns.

Although much of this may sound arcane to our ears, and many historical

nuances may escape us,28we should note that Schmitt does not mince his words

and sees Kant as initiating doctrinal changes that will eventually undermine the

non-discriminatory concept of war. But, just as obviously, it was possible for



14/27


Kant, he writes, as it was earlier for theologians, to use a philosophical ethic

to deny the concept of ajustus hostis, and by introducing discriminatory war, to

destroy the work of jurists of thejus publicum Europaeum (Nomos, 143; 171).

These changes will lead to the outlawing of wars of aggression through the

KelloggBriand Pact of 1928 and the extension of international law to include

not only the crime of war but also the category of crimes against humanity.

Already in Kants injunctions against using human beings as spies, snipers and

propagandists, some sense of human dignitythat places limits on what can be

done withand tohuman beings in war is evident.

Although all his criticisms of Kant are consistent with Schmitts claim that

the political is the most intense kind of human conflict, and that therefore it

cannot be made subservient to the legal, religious, moral or aesthetic domains,there is also a dimension of personal bitterness that accompanies many of his

assertions. Schmitt sees the Nremberg and Tokyo trials as a form of

Siegerjustiz, victors justice, and illegitimate bootstrappingNullum cri-

men, nulla poena sine lege (No crime, no punishment without the law) is his

judgment. Or, as he puts it more caustically with regards to the Holocaust:

Was it a crime against humanity? Is there such a thing as a crime against

love?29; and further, Genocidethe murder of peoplesa touching con-

cept; I have experienced an example of it myself: the extermination of theGerman-Prussian civil service in 1945. Finally: There are crimes against

humanity and crimes for humanity. Crimes against humanity are committed

by the Germans. Crimes for humanity are perpetrated on the Germans.

Schmitt is not simply the theorist of agonistic and contentious politics but

the theorist of the rights of states to conduct war for their own preservation

and also the theorist who rejects concepts such as human rights and crimes

against humanity as being moralizing glosses on superpower politics.30

In Kants Idea of Perpetual Peace: At Two Hundred Years HistoricalRemove, Jrgen Habermas discusses Schmitts critique of Kant. The poli-

tics of a world organization, writes Habermas, that takes its inspiration from

Kants idea of perpetual peace and is directed to the creation of a cosmopolitan

order, harkens to the same logic, according to Schmitt: its pan-interventionism

would inevitably lead to pan-criminalization, and hence the perversion of the

goal it is supposed to serve.31 In particular, Habermas disputes Schmitts

claim that the politics of human rights leads to wars which under the guise of

police actions take on a moral character; and second, that this moralization

brands opponents as enemies, and the resulting criminalization for the first

time gives inhumanity a completely free hand (Habermas, KIPP, 18889).

Undoubtedly, the last two decades since the end of the Cold War and the

fall of the Berlin Wall in 1989 have been some of the most confusing and



15/27

Benhabib 701

bewildering in terms of international alliances and world politics, and strange

bedfellows have been created in the process. We still hear echoes of this

Schmittian critique that the first Gulf War, the NATO intervention in Kosovo,

and the Afghanistan and Iraq Wars conducted by the United States were

instances of the moralization of war, that declared enemies to be crimi-

nals.32 Certainly, contemporary Left-Schmittians who see each conflict in

terms of the bid to global empire of a single hegemon have an easier time

than the rest of us as public intellectuals and citizens, whose moral intuitions

and political judgments on these issues have often been confused and conflic-

tual, but not for lack of clear thinking or information. As Hannah Arendt

observed in quite a different context, it is the mark of ideological thinking to

have a key to unlock every riddle33; in the absence of such a key, we have tolearn the art of making hard distinctions, such as may be yes to the original

U.S. action against the Taliban but no to the Second Iraq War; may be yes

to Kosovo, even in the absenceof a UN Security Council vote; may be no

to Libya even witha Security Council resolution etc. Making such judgments

are the burden of our times.

In conclusion, I wish to explore new ways of thinking about international

law and cosmopolitan human rights norms that give the lie to the qualms of

some on the Left that international law yields a Geistes Bastillean intel-lectual or spiritual prison. There are many dimensions to Schmitts discussion

of external sovereignty and international law, but I would like to focus on one

alone. Are human rights treaties that limit sovereignty in the postWorld War

II period moralizing impositions upon the will of democratic peoples? How

can we conceptualize the relationship between international human rights

norms to democratic sovereignty? There is an important debate among liberal

and democratic thinkers on these issues and Schmitts thought is of little

guidance in helping us think through our contemporary dilemmas.

Varieties of Sovereigntism

One of the most important developments in international law in the post

World War II period is, in addition to the criminalization of wars of aggres-

sion, the normative limitations placed on state sovereignty through the

spread of human rights norms. I will refer to the many treaties that have been

concluded since the Universal Declaration of Human Rights of 1948 as cos-

mopolitan human rights treaties.34 These treaties confirm the status of

humans as rights-bearing beings not in virtue of their national citizenship but

in virtue of their human personality, although such rights can be meaning-

fully exercised only in the context of specific polities. It is quite correct to



16/27


see in these developments the flourishing of certain normative principles

forcefully articulated by Kant.

Schmitt is just as cynical about limitations placed on internal sovereignty

as he is about limitations imposed on external sovereignty. By not distin-

guishing between human rights norms limiting internal, domestic sovereignty

and norms prohibiting wars of aggression, limiting external sovereignty, pro-

gressive thinkers who wish to use Schmitts thought to critique the hypocri-

sies of the current international order are risking throwing the baby out with

the bathwater. In conclusion, I want to briefly argue that the model of a hege-

monic imposition of cosmopolitan norms on self-determining polities misun-

derstands the contemporary world of treaties and states institutionally as well

as normatively.The normative objections raised by sovereigntists against recent legal

developments can be separated into the nationalistand democraticvariants.

The nationalistvariant traces the laws legitimacy to the self-determination

of a discrete, clearly bounded nation whose law expresses and binds its col-

lective will alone.35The democraticvariant says that laws cannot be consid-

ered legitimate unless a self-determining people can see itself both as the

author and the subject of its laws. For the democratic sovereigntist it is not

paramount that the law express the will of a nation, of an ethnos, but thatthere be clear and recognized public procedures for how laws are formulated

and in whose name they are enacted and how far their jurisdiction extends in

the name of a demos.

The democratic sovereigntistargument has many adherents, among them

Thomas Nagel, Quentin Skinner, Michael Walzer and Michael Sandel.36One

way to introduce some clarity into the debate between cosmopolitans and sov-

ereigntists is to focus on a familyof global norms which enjoys widespread

support. These are international human rights norms, originating with theUniversal Declaration of Human Rights of 1948. A democratic sovereigntist

such as Thomas Nagel and a cosmopolitan such as Habermas both agree

thatpace Schmittin addition to international law concerning the prohibi-

tion and conduct of war among states, human rights constitute the foundations

of the postWorld War II international system.37The spread of international

law need not take the form of a social contract for the formation of a world-

state that would transcend the political autonomy of existing states.38Instead,

as Habermas argues, Today any conceptualization of a juridification of world

politics must take as its starting point individuals and statesas the two catego-

ries of founding subjects of a world constitution (ibid., 449, emphasis in

original). So the question is not whether one can move to a world without

competing states but whether there are modes of mediating international



17/27

Benhabib 703

norms with nationaldemocratic ones that would not involve subordinating

the national to the supranational and would safeguard legitimate plurality in

the interpretation, adjudication and application of human rights norms.

I would like to distinguish among three different, but mutually supporting,

models that try to conceptualize this mediatization between cosmopolitan

human rights norms and democratic processes of will and opinion formation.

Such mediatization can take place through jurisgenerative processes of

democratic iterations that interpret and contextualize the national in the

light of the cosmopolitan, giving both sets of norms new and unexpected

hermeneutic context. A second form of mediatization involves the institu-

tional impactof international human rights covenants on states subscribing to

them; and a third form pertains to the impact of such treaties on courts andadjudication. My argument is that many left critics of cosmopolitanism

ignore the actual workings of the system of international law and view this

new legal order as if it were a smooth command structure, but it is not. The

challenge today is to develop an institutional, normative and conceptual

model for articulating the universe of this new law of nations.39

Jurisgenerative Mediation of InternationalNorms and Democratic Sovereignty

Byjurisgenerativity, a term originally suggested by Robert Cover,40I under-

stand the laws capacity to create a normative universe of meaning that can

often escape the provenance of formal lawmaking.41Laws acquire mean-

ing in that they are interpreted within the context of significations that they

themselves cannot control. There can be no rules withoutinterpretation; rules

can only be followed insofar as they are interpreted.42But there are also no

rules that can control the varieties of interpretation they can be subject towithin all different hermeneutical contexts. Laws normativity does not con-

sist in its grounds of formal validity, that is, its legality alone, though this is

crucial. Law can also structure an extra-legal normative universe by develop-

ing new vocabularies for public claim-making, by encouraging new forms of

subjectivity to engage with the public sphere and by interjecting existing

relations of power with anticipations of justice to come. Law anticipates

forms of justice in the future to come. Law is not simply an instrument of

domination and a method of coercion; the force of law (to use a phrase of

Jacques Derridas)43 involves anticipations of justice to come which it can

never quite fulfill but which it always points toward.

Democratic sovereigntists ignore that international human rights norms can

empowercitizens in democracies by creating new vocabularies for claim-making



18/27


as well as by opening new channels of mobilization for civil society actors who

then become part of transnational networks of rights activism and hegemonic

resistance.44Human rights norms require interpretation and vernacularization;

they cannot just be imposed by legal elites and judges upon recalcitrant peoples;

rather, they must become elements in the public culture of democratic peoples

through their own processes of interpretation, articulation and iteration.

Such contextualization, in addition to being subject to various legal tradi-

tions in different countries, attains democratic legitimacy insofar as it is car-

ried out through the interaction of legal and political institutions within free

public spaces in civil society. When such rights principles are appropriated by

people as their own, they lose their parochialism as well as the suspicion of

western paternalism often associated with them. I call such processes ofappropriation democratic iterations.45

Institutionalist Mediation of International Norms

A more empirical and institutional approach to analyzing the impact of

human rights norms on signatory states has been provided by Beth Simmons.

In her influential work, Simmons looks at empirical case studies to analyze

the impact of states ratifications of various human rights treaties on domes-tic adherence to human rights norms. Simmons observes that the more

interesting cases . . . are those in which governments ratify an international

human rights agreement, yet make no move to implement or comply with it.

Why should a ratified treaty make a difference in such cases?46One reason

may be that since treaties constitute law in some jurisdictions, they could

strengthen civil rights litigation. Yet it is more challenging when ratified trea-

ties enable citizens mobilization. Simmons focuses on non-democratic

states to argue that ratification injects a new model of rights into domesticdiscourse, potentially altering expectations of domestic groups and encour-

aging them to imagine themselves as entitled to forms of official respect

(Simmons, 445). Simmons presents an analysis of the impact of the ICCPR

on civil liberties and religious freedoms across several countries. These

results suggest, she writes, a modest but important conclusion: interna-

tional treaty commitments quite likely have made a positive contribution to

civil rights practices in many countries around the world (Simmons, 480).

Adjudicative Models of Mediating International Norms

Yet a further approach is developed by Alec Stone Sweets work on the

emergence of a cosmopolitan order through the interplay of legislation and



19/27

Benhabib 705

adjudication between the European Court of Human Rights, the European

Court of Justice and national courts within the ever-expanding European

legal sphere. Stone Sweet writes:

A cosmopolitan legal order [CLO] is a transnational legal system in

which all public officials bear the obligation to fulfill the fundamental

rights of every person within their jurisdiction, without respect to

nationality or citizenship. In Europe, a CLO has emerged with the

incorporation of the European Convention on Human Rights [ECHR]

into national law. The system is governed by a decentralized sovereign:

a community of courts whose activities are coordinated through the

rulings of the European Court of Human Rights.47

Human rights norms assume flesh and blood through democratic itera-

tions, as well through institutional incorporation via states treaty obligations

into civil society, and also through the interplay of adjudication and legisla-

tion. The democratic sovereigntists fears that cosmopolitan human rights

norms must override democratic legislation is unfounded, because the very

interpretation and implementation of human rights norms are radically

dependent upon the democratic will formation of the demos, which is, ofcourse, not to say that there can be no conflict either of interpretation or

implementation.

Conclusion

We have entered a new stage in the development of global civil society in

which the relationship between state sovereignty and various human rights

regimes generate dangers of increasing interventionism but also paradoxi-cally create spaces for cascading forms of democratic iteration across bor-

ders. It is the perplexities of this new legal and political landscape that send

many critics on the left and the right to Carl Schmitts work. Yet Schmitts

work, as historically rich and conceptually challenging as it may be, is not

easily extricated from its ideological moorings in his own political entangle-

ments with the Nazi regime. Nor was Schmitt wrong to see in Kants doctrine

of the unjust enemy certain ambiguities and obscurities that maylead to a

coercive regime of liberal cosmopolitanism. Yet the evolution of human

rights norms in the postWorld War II period ushers in a new phase of inter-

national law, which cannot be interpreted as a coercive regime of neo-liberal

hegemonic intentions. Critics who do so fail to understand the structure of

mediations between international law and democratic sovereignty that are



20/27


created by these developments. In conclusion, I have briefly suggested three

different but complementary approaches to understanding such mediations.

Certainly, superpower hypocrisies in upholding or violating norms of aggres-

sive war cannot be prevented by a regime of the spread of human rights

norms alone, but by distinguishing between these two aspects of the interna-

tional legal order, citizens become more empowered to criticize their own

governments. Carl Schmitts legacy, in contrast, disempowers citizens by

giving the state the monopoly of interpretation over its own strategic inter-

ests of survival in the multiversumof states.

Acknowledgments

I thank William Scheuerman, John McCormick, Andreas Kalyvas, Thomas McCarthy,

Adam Tooze, Stefan Eich and the reviewers and editors ofPolitical Theoryfor com-

ments on an earlier draft of this article.

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research,

authorship, and/or publication of this article.

FundingA Guggenheim Fellowship and a stay at New York University Law Schools Straus

Institute for the Advanced Study of Law and Justice in spring 2012 made its comple-

tion possible.

Notes

1. Carl Schmitt,Political Theology: Four Chapters on the Concept of Sovereignty,

trans. with an Introduction by George Schwab (Chicago: University of Chicago

Press, 1985), based on the revised edition of 1934 (PThereafter). 2. Carl Schmitt, The Concept of the Political, trans. and with an introduction by

George Schwab, expanded edition with Leo Strausss Notes on Schmitts Essay

(Chicago: University of Chicago Press, 1996); hereafter referred to asTCP; Carl

Schmitt, Crisis of Parliamentary Democracy, trans. and with an introduction by

Ellen Kennedy (Cambridge, MA: MIT Press, 1988); referred to as TCPD.

3. Otto Kirchheimer, Remarks on Carl Schmitts Legality and Legitimacy, in

The Rule of Law under Siege: Selected Essays of Franz L. Neumann and Otto

Kirchheimer, ed. William Scheuerman (Berkeley: University of California Press,

1996), 6498. On the influence of Carl Schmitt on Walter Benjamin who wanted

to dedicate his doctoral dissertation on German baroque drama to Schmitt,

see Richard Wolin, Between Proust and Zohar: Walter Benjamins Arcades

Project, in The Frankfurt School Revisited and other Essays on Politics and



21/27

Benhabib 707

Society (London: Routledge, 2006), 2145; on Hans Morgenthau and Carl

Schmitt, see Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and

Fall of International Law 18701960(Cambridge, UK: Cambridge University

Press, 2002), 41340; William Scheuerman, Carl Schmitt and Hans Morgen-

thau: Realism and Beyond, in Realism Reconsidered: The Legacy of Hans.

J. Morgenthau in International Relations, ed. Michael C. Williams (Oxford:

Oxford University Press, 2007), 6292; on Leo Strauss and Carl Schmitt, see

Leo Strauss, Notes on Carl Schmitt, The Concept of the Political, in Schmitt,

TCP, 81109, and Heinrich Meier, Carl Schmitt, Leo Strauss und Der Begriff

des Politischen(Stuttgart: J. B. Metzler Verlag, 1998); Chantal Mouffe, The

Challenge of Carl Schmitt(London: Verso, 1999); Chantal Mouffe and Ernesto

Laclau,Hegemony and Social Strategy: Towards a Radical Democratic Politics

(London: Verso, 1986; 2nd ed., 2001).

4. Carl Schmitts Verfassungslehre(Berlin: Duncker & Humblot, 1928) in: J. Seitzer,

Constitutional Theory(Durham: Duke University Press, 2008); and special sec-

tion Carl Schmitts Constitutional Theory,Constellations18, no. 3 (September

2011).

5. Cf. the recent volume, Spatiality, Sovereignty and Carl Schmitt. Geographies of

the Nomos, ed. Stephen Legg (London: Routledge, 2011).

6. William Rasch, A Just War or Just a War?: Schmitt, Habermas and the Cosmo-politan Orthodoxy,Cardozo Law Review21 (19992000): 166584, here, 1683.

7. ARezeptionsgeschichteof the Schmitt revival on both sides of the Atlantic would

be a book in itself, but it appears to have started with Italian Leftists in the 1970s

who, at the height of the violence of theRed Brigades, were unsatisfied that there

was no theory of the state and of violence in Marxism. This interest then jumped

over to the United States, and principally to the journalTelos, which started pub-

lishing articles and translations by Gary Ulmen and Joseph Benderskythe rest,

as they say, is history. See Paul Piccone and Gary Ulmen, Introduction to CarlSchmitt, Telos72 (Summer 1987); this was preceded by a controversial article

by Ellen Kennedy, Carl Schmitt and the Frankfurt School, Telos71 (Spring

1987): 3766, with responses by Martin Jay, Alfons Sollner, and Ulrich Preuss.

Tracy B. Strong gives a balanced overview in Foreword: Dimensions of the

New Debate Around Carl Schmitt, in TCP, ixxxix. In the twenty-odd years

since the publication of this material in Telos, the English-language literature

devoted to Schmitt has, in Richard Bernsteins words, turned into a virtual tsu-

nami. Richard J. Bernstein, The Aporias of Carl Schmitt, Constellations18,

no. 3 (September 2011): 40331.

8. Carl Schmitt,Der Nomos der Erde im Vlkerrecht des Jus Publicum Europaeum,

4th ed. (Berlin: Duncker & Humblot, 1997), 99; The Nomos of the Earth in the



22/27


International Law of the Jus Publicum Europaeum, trans. G. L. Ulmen (New

York: Telos, 2003), 12829. All references in the text to this volume are cited as

Nomos, and followed first by page numbers of the German and then of the English

editions. I have consulted but not always used the English translation.

9. See Carl Schmitt, Vlkerrechtliche Groraumordnung mit Interventionsverbot

fur raumfremde Mchte, translated as The Groraum Order of International

Law with a Ban on Intervention for Spatially Foreign Powers: A Contribution

to the Concept of Reich in International Law (1939-1941) in Carl Schmitt,

Writings on War, trans. and ed. Timothy Nunan (Cambridge, UK: Polity Press,

2011), 75125. It is impossible to render the German associations of concepts

such as Groraumand raumfremde Mchteaccurately in English. The concept of

Raum does not simply mean space for Schmitt; it is related to Ort (place)

and Nomos. See footnotes 12 and 13 below. See also Benno Teschke, Deci-

sions and Indecisions: Political and Intellectual Receptions of Carl Schmitt,

New Left Review67 (JanuaryFebruary 2011): 6195, on this period in Schmitts

writings, particularly 65ff.

10. Gerhard Nebel, Griechischer Ursprung, vol. I,Platon und die Polis(Wuppertal:

Marees Verlag, 1948), 22 and 39, as cited by G. L. Ulmen, Translators Intro-

duction, in Schmitt,Nomos, 20. The implications of this concept for Schmitts

contrast between Germanic and Semitic understandings of the law are too exten-sive to be traced here. The Jews were the people who believed in law without an

orientation or attachment to the land, since they were diasporic and had no piece

of the earth they could call their own. See Raphael Gross, Carl Schmitt und die

Juden(Frankfurt: Suhrkamp, 2000), 60142.

11. See Dan Diner and Michael Stolleis, eds.,Hans Kelsen and Carl Schmitt: A

Juxtaposition(Gerlingen: Bleicher, 1999).

12. Raphael Gross, Jewish Law and Christian GraceCarl Schmitts Critique of

Kelsen, in Diner and Stolleis, Hans Kelsen and Carl Schmitt, 10113, here106. Cf. Wilhelm Stapel, Sechs Kapitel ber Christentum und Nationalsozialis-

mus(Hamburg: Hanseatische Verlagsanstalt, 1931), as cited by Gross, 112 fn. 2.

Schmitt cites Stapel approvingly in his attempts to translatenomos asLebensge-

setz, (the law of life) but notes: It disturbs me that the word life which has

degenerated (entartet) into biologism, as well as the word law (Gesetz), which

under all circumstances needs to be avoided here, are still preserved in this trans-

lation (Nomos, 39; 70). Inexplicably, the English translation makes this passage

into a footnote that is not there in the German version (70 fn. 10).

13. Cf. Schmitt: Nevertheless, unlike the Greek word nomos, the German word

Gesetzis not an Urwort[primeval word]. It is deeply entangled in the theological

distinctions between (Jewish law) and (Christian) gracethe (Jewish) law and

the (Christian) gospel (Nomos, 39; 70 fn).



23/27

Benhabib 709

14. Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton, NJ: Princ-

eton University Press, 1999).

15. For a masterful account, which is also a sustained critique of Schmitt, see

Koskenniemi, The Gentle Civilizer of Nations, 98179.

16. For further explorations of this theme, see S. Benhabib, Twilight of Sovereignty

or the Emergence of Cosmopolitan Norms: Rethinking Citizenship in Volatile

Times, Citizenship Studies11, no. 1 (February 2007): 1936; now in Seyla Ben-

habib,Dignity in Adversity: Human Rights in Troubled Times(Cambridge, UK:

Polity, 2011), 94117.

17. This strange affinity between the theory and practice of American exceptionalism

and Schmitts political thought is well explored by Paul Kahn inPolitical Theol-

ogy: Four New Chapters on the Concept of Sovereignty(New York: Columbia

University Press, 2011). But Kahns methodology obscures Schmitts politics and

takes the bite out of some of his most outrageous theses. See below, footnote 30.

18. See W. Scheuerman, Carl Schmitt and the Nazis, German Politics and Society

23 (summer 1991): 7179; and W. Scheuerman, Carl Schmitt: The End of Law

(Lanham: Rowman & Littlefield, 1999); R. Mehring, Carl Schmitt: Aufstieg und

Fall(Munich: C.H. Beck, 2009).

19. For inconsistencies in Schmitts own usage, seeDer Begriff des Politischen, Text

von 1932 mit einem Vorwort und drei Corollarien, 7th ed. (Berlin: Duncker &Humblot, [1932] 2002); TCP, 2627; 28; 33; 36.

20. Karl Lwith, The Occasional Decisionism of Carl Schmitt, inMartin Hei-

degger and European Nihilism, ed. Richard Wolin, trans. Gary Steiner (New

York: Columbia University Press, 1995), 151.

21. Cf. Uday Mehta,Liberalism and Empire: A Study in Nineteenth-Century British

Liberal Thought(Chicago: University of Chicago Press, 1999); Sankhar Muhtu,

Enlightenment against Empire (Princeton: Princeton University Press, 2003);

Karuna Mantena,Alibis of Empire: Henry Maine and the Ends of Liberal Impe-rialism(Princeton: Princeton University Press, 2010); Bhikhu Parekh,Rethink-

ing Multiculturalism: Cultural Diversity and Political Theory(Cambridge, MA:

Harvard University Press, 2002); Richard Tuck, The Rights of War and Peace:

Political Thought and the International Order from Grotius to Kant (Oxford:

Oxford University Press, 1999); James Tully,A Discourse on Property: John

Locke and His Adversaries(Cambridge, UK: Cambridge University Press, 1983),

and James Tully,Public Philosophy in a New Key, Vol. 2,Imperialism and Civic

Freedom(Cambridge, UK: Cambridge University Press, 2008); Anthony Pag-

den, ed., The Languages of Political Theory in Early-Modern Europe: Ideas in

Context(Cambridge, UK: Cambridge University Press, 1987); A. Pagden,Lords

of All the World: Ideologies of Empire in Spain, Britain and France c.1500

c.1800(New Haven, CT: Yale University Press, 1998).



24/27


22. Immanuel Kant, Die Metaphysik der Sitten in zwei Teilen, InImmanuel Kants

Werke, ed. A. Buchenau, E. Cassirer, and B. Kellermann (Berlin: Verlag Bruno

Cassirer, [1797] 1922); English translation, The Metaphysics of Morals, trans.

and edit. Mary Gregor, Cambridge Texts in the History of Political Thought

(Cambridge, UK: Cambridge University Press, 1996). This edition is referred to

in the text asKant, MEJ, followed by paragraph and then page number.

23. That Kant is surprisingly close to Hobbes in some of his formulations regarding

the state of nature has been emphasized by Richard Tuck inThe Rights of War

and Peace. Political Thought and the International Order from Grotius to Kant

(New York: Oxford University Press, 2001), 2079.

24. Cf. Hauke Brunkhorsts discussion of Kant and Schmitt, The Right to War:

Hegemonial Geopolitics or Civic Constitutionalism, Constellations11, no. 4

(2004): 51225; cf. also Wolfram Malte Fuss, The Foe: The Radical Evil, Politi-

cal Theology in Immanuel Kant and Carl Schmitt,Philosophical Forum(2010):

181204.

25. I have consulted several English translations of Kants Perpetual Peace essay,

amending the text when necessary. See Immanuel Kant, Zum Ewigen Frieden.

Ein philosophischer Entwurf, in Immanuel Kants Werke, ed. A. Buchenau,

E. Cassirer, and B. Kellermann (Berlin: Verlag Bruno Cassirer, [1795] 1923);

English translation: H. B. Nisbet, trans., Perpetual Peace: A PhilosophicalSketch, in Kant: Political Writings, ed. Hans Reiss, Cambridge Texts in the

History of Political Thought, 2nd and enlarged ed. (Cambridge, UK: Cambridge

University Press, 1994). The first date and page number refer to the German text

and the second to the English editions.

26. Here Kants doctrine of relations among states leads to his theory of cosmopoli-

tan right, which Kant made the Third Definitive Article of Perpetual Peace:

Cosmopolitan Right shall be limited to Conditions of Universal Hospitality

(Kant 1795 [1923], 443; 1994, 105). There is considerable debate as to howexpansively we should interpret Kants cosmopolitanism: did Kant expect the

whole world eventually to converge around the principles of a republican

constitution? How was this to be distinguished from a world state which he

sharply criticized as a form of soulless despotism etc.? Tuck is among those

who tend towards e a minimalist understanding of Kants doctrine of cosmopoli-

tan right. Cf. Tuck, The Rights of War and Peace, 220ff. Cf. S. Benhabib, Intro-

duction: Cosmopolitanism without Illusions, inDignity in Adversity: Human

Rights in Troubled Times, 120.

27. Cf. the collection,Perpetual Peace: Essays on Kants Cosmopolitan Ideal, ed.

James Bohman and Matthias Lutz-Bachmann (Cambridge, MA: MIT Press, 1997).

28. For an illuminating and detailed account that also surveys some of the reasons

for the revival of interest in this aspect of Kants thought, see Martin Frank,



25/27

Benhabib 711

Kant und der ungerechte Feind,Deutsche Zeitschrift fr Philosophie59, no. 2

(2011): 199219.

29. Carl Schmitt, Glossarium: Aufzeichnungen der Jahre 1947-1951 (Berlin:

Duncker & Humblot, 1991). The first quote is from 113, dated March 12, 1948;

the second from 265, dated August 21, 1949; and the last is from 282, dated

December 6, 1949.

30. Interpretations of Schmitt have given rise to a battle of readings in contempo-

rary thought. Paul Kahn writes of his approach: My approach, then, is to engage

Schmitts texts in an effort to uncover the phenomenon of the political. This work

is neither an exegesis of his text, nor an intellectual history. I assume no famil-

iarity with Schmitts text and none with his historical situation (Kahn,Political

Theology, 29). I disagree. This kind nave reading, without prejudice, can lead

to distortions and does not help us understand Schmitts fighting words and con-

tradicts Schmitts own methodology of concept formation. Schmitt writes: Words

like state, republic, society, class, and also: sovereignty, constitutional state, abso-

lutism, dictatorship, planning, neutral or total state, etc., are unintelligible if one

does not know who in concretois supposed to be encountered, fought, negated,

and refuted with such words . . ., TCP, 30ff. Cf. also Lwith, The Occasional

Decisionism of Carl Schmitt, 28081, fn. 76. Chantal Mouffes rather decontex-

tualized treatment of Carl Schmitt has had the purpose of excising some of themost troubling dimensions of his thought, and presenting him as a theorist of ago-

nistic politics. Cf. Chantal Mouffe, ed., The Challenge of Carl Schmitt(London:

Verso, 1999); C. Mouffe, Carl Schmitt and the Paradox of Liberal Democracy,

Canadian Journal of Law and Jurisprudence10, no. 1 (1997): 2133.

31. Jrgen Habermas, Kants Idea of Perpetual Peace: At Two Hundred Years

Historical Remove, in The Inclusion of the Other: Studies in Political Theory,

trans. Ciaran Cronin and Pablo de Greiff (Cambridge, MA: MIT Press, 2001),

165203; here 188. Referred to in the text as Habermas, KIPP, followed by pagenumbers. For a reading of the HabermasSchmitt connection that reveals some

affinities, see Reinhard Mehring, Der Nomos nach 1945 bei Carl Schmitt

and Jrgen Habermas, http://www.forhistiur.de/zitat/0603mehring.tm (March

31, 2006).

32. Perry Anderson, Arms and Rights: Rawls, Habermas and Bobbio in an Age of

War,New Left Review31 (JanuaryFebruary 2005): 540.

33. This is a theme that is prevalent in much of Hannah Arendts work; cf.The Ori-

gins of Totalitarianism(New York: Harcourt, Brace and Jovanovich, 1979); first

published as The Burden of Our Time (London: Secker & Warburg, 1951). On

judgment, propaganda and understanding, see Understanding and Politics (The

Difficulties of Understanding), inArendt. Essays in Understanding 1930-1945,

ed. Jerome Kohn (New York: Harcourt, Brace and Co., 1994), 30728, here 313.



26/27


34. See Benhabib, Introduction: Cosmopolitanism without Illusions, inDignity in

Adversity, 120.

35. Cf. the following statement by John Bolton: While the term sovereignty has

acquired many, often inconsistent, definitions, Americans have historically

understood it to mean our collective right to govern ourselves within our consti-

tutional framework. And Sharing . . . will diminish the sovereign power of

the American people over their government and their own lives, the very purpose

for which the Constitution was written. The Coming War on Sovereignty,

Commentary127, no. 3 (March 2009), http://www.commentarymagazine.com/

the-coming-war-on-sovereignty (accessed March 25, 2009). Bolton served

briefly and controversially as the United States Permanent Representative to the

United Nations in 20052006.

36. Thomas Nagel, The Problem of Global Justice,Philosophy and Public Affairs

33 (2005): 11347; Quentin Skinner,Liberty before Liberalism(Cambridge, UK:

Cambridge University Press, 2008 [1998]); Michael Walzer,Spheres of Justice:

A Defense of Pluralism and Equality(New York: Basic Books, 1983); Michael

J. Sandel,Democracys Discontent: America in Search of a Public Philosophy

(Cambridge, MA: Belknap Press of Harvard University Press, 1996).

37. Nagel, The Problem of Global Justice, 114. See Habermass comments on

Nagels article: The Constitutionalization of International Law and the Legiti-macy Problems of a Constitution for a World Society, Constellations15, no.

4 (December 2008): 44455; on human rights, see 445 and 447. I have dealt

with this issue more extensively in Benhabib, Claiming Rights across Borders:

International Human Rights and Democratic Sovereignty,American Political

Science Review103, no. 4 (November 2009): 691704.

38. Habermas, The Constitutionalization of International Law, ibid. 44849.

39. See most recently, Jeremy Waldron, Partly Laws Common to All Mankind:

Foreign Law in American Courts (New Haven, CT: Yale University Press, 2012).40. See Robert Cover, Foreword:Nomosand Narrative, The Supreme Court 1982

Term,Harvard Law Review97, no. 4 (1983/84): 468. Some of this material is

taken from Benhabib, Claiming Rights across Borders.

41. Cover, Foreword:Nomosand Narrative, 18.

42. This, of course, is the crucial insight of H. L. A. Harts work, cf.The Concept of

Law, Clarendon Law Series (Oxford: Oxford University Press, 1997), 79100.

43. Jacques Derrida, The Force of Law: The Mystical Foundation of Authority,

Cardozo Law Review11, no. 919 (19891990): 9201046 (bilingual text, trans.

Mary Quaintance).

44. Margaret E. Kick and Kathryn Sikkink,Activists beyond Border (Ithaca, NY:

Cornell University Press, 1998); Thomas Risse, Steven Rapp, and Kathryn Sik-

kink, The Power of Human Rights: International Norms and Domestic Change



27/27

Benhabib 713

(Cambridge, UK: Cambridge University Press, 1999); Beth Simmons,Mobiliz-

ing for Human Rights: International Law in Domestic Politics(Cambridge, UK:

Cambridge University Press, 2009).

45. By democratic iterations, I mean complex processes of public argument, delib-

eration and exchange through which universalist rights claims are contested and

contextualized, invoked and revoked, posited and positioned throughout legal

and political institutions as well as in the associations of civil society. For a more

recent statement which addresses several critical objections, see Seyla Benhabib,

Democratic Exclusions and Democratic Iterations: Rethinking The Rights of

Others, inDignity in Adversity, ch. 8, 13866.

46. See Beth Simmons, Civil Rights in International Law: Compliance with Aspects

of the International Bill of Rights,Indiana Journal of Global Legal Studies

16, no. 2 (Summer 2009): 43781, here 443. Abbreviated in the text as Simmons,

followed by page number.

47. Alec Stone Sweet, A Cosmopolitan Legal Order: Constitutional Pluralism and

Rights Adjudication in Europe,Global Constitutionalism1, no. 1 (2012): 5390.

About the Author

Seyla Benhabib is the Eugene Meyer Professor of Political Science and Philosophy

at Yale University. She has previously written on critical theory, Jrgen Habermas,feminism, migration, citizenship and the political philosophy of Hannah Arendt. Her

most recent publication is Dignity in Adversity: Human Rights in Troubled Times

(Polity, 2011). A Guggenheim Fellowship recipient, she is currently at work on a

project on transformations of sovereignty and international law.

BENHABIB Schmitts Critique of Kant

Documents

Transcript of BENHABIB Schmitts Critique of Kant