law and politics, and between inside and outside, separating a domes-
tically neutralized and pacified ‘civil society’ from an international sphere
of interstate war and peace. This dualism fortified the distinction between
public international law and private criminal law.
Although war remained an indispensable and irreducible manifestation of
concrete political communities – indeed, the essence of ‘the political’ – it was
the crowning achievement of early modern public law to have channelled
collective violence among a variety of actors – an ongoing European civil
war – into a ‘war in form’. This move towards a ‘non-discriminatory
concept of war’ entailed, according to Schmitt, the ‘bracketing of war’ –
including its civilization, rationalization, and humanization – and a clear
distinction between belligerents and neutrals, combatants and non-
combatants, states of war and states of peace. ‘War in form’, that is, modern
interstate warfare, came to be conducted among equals according to certain
inter-subjectively agreed and commonly binding legal conventions – a
combination of
ius ad bellum and ius in bello – that also implied
the positive making of peace. The
ius ad bellum came to be divorced from
‘just cause’ considerations (
iusta causa), which were declared immaterial
for determining the legitimacy of war. This gave rise to the notion of a
‘non-discriminatory concept of war’, which superseded medieval just war
doctrines. Thus, juridically externalized, the reasons for war-declarations
were placed outside any legal, moral, or political judgment, implying the
retention of the status of the enemy, even during and after war, as a just
enemy, rather than its demotion to a foe, criminal, or barbarian. Morality, in
that sense, came to be divorced from politics proper. A destructive moral
universalism, as expressed in the 15th and 16th century wars of religion,
was replaced by a salutary moral relativism in interstate relations.
Accordingly, the
ius publicum implied a decisive rupture with medieval just
war theories, grounded in the moral universalism of the
respublica christiana.
This new concept of war – at once: public, that is, restricted to interstate war,
bracketed, that is, circumscribed by rational rules of conduct, and non-
discriminatory, that is, morally neutral – sealed the shift from the medieval
ius gentium to the ius inter gentes. It established a historically unprecedented
and exemplary nomos, capable of combining untrammelled state sovereignty
with the anarchy-mitigating effects of international law.
This line of reasoning was powerfully invoked by Schmitt against the
post-World War I (WWI) criminalization of the German
Reich as an
‘outlaw nation’, whose distinctly political status as a sovereign state was
revoked by the ‘Versailles
Diktat’. As Germany was not admitted to the
peace negotiations, and as ‘war guilt’ and ‘war crime’ were not juridical
concepts in interstate relations (
nullum crimen, nulla poena sine lege),
their formulation and intrusion into international law after 1919 transformed
Fatal attraction: Schmitt’s international theory 189
public interstate law into an incipient world domestic law, starting to
re-moralize and juridify the inter-political by introducing a new ‘dis-
criminatory concept of war’. This re-inserted just war considerations into
the definition of the legality of warfare. This move castrated, according
to Schmitt, the essence of the political – the sovereign decision to go to
war against an enemy. Versailles thereby abrogated the cornerstone of
the classical
ius publicum, undermined war’s status as the autonomous,
purest, and highest form of interstate relations, transformed war into a
policing exercise, and thus re-domesticated warfare. Worse, the Wilsonian
invocation of the concept of humanity reconnected post-Versailles concep-
tions of international law to medieval just war doctrines that contained a
tendency towards the total negation of the formerly ‘just enemy’ and its
degradation to an enemy of mankind – a non-human. Correlatively, it gen-
erated a new and distinct liberal way of war – more total in its war aims than
the bracketed and limited wars of pre-1914 Europe – as it aimed, next to the
killing of non-humans, at the direct transformation of politics, society, and
subjectivities: the making of liberal subjects.
Neo-Schmittians detect in the United States hubris of the neo-
conservative imperial moment – and its morally recharged discourse of good
vs. evil, humanity against terrorists, and the impossibility of neutrality – a
replay, if in intensified form, of the spectre of Versailles. This is embedded in
a much broader and essentially continuous proclivity in United States
foreign policy since WWI and its redefinition of international law. In this,
the invocation of humanity leads, paradoxically but logically, to the
de-politicization of former ‘just enemies’, their criminalization as outlaws,
even their de-humanization as foes, and the radicalization and bestialization
of warfare through its transformation into an annihilatory exercise of
unqualified killing, the return of torture as a legitimate means against what
are by definition non-combatants, and the structural impossibility of con-
cluding peace in the absence of a legal enemy – a war without end. Its
temporal ending is equivalent to either the murder of the last terrorist, his
incarceration without trial, or the creation of liberal subjects. The ‘war
against terror’ is also regarded as another incarnation of Wilson’s ‘war to end
all wars’, being paradoxically total in purpose and unending in space and
time. The totalizing character of the ‘liberal way of war’, then, is manifested
in its war-aims, informed by a re-moralization of international law and
politics. This invariably includes the liberal transformation of targeted states,
societies, and subjectivities, structurally incapable of leaving an enemy state
and its society intact after defeat and of re-admitting a defeated state into the
‘international society’ or ‘international community’ – a historical practice
ideal-typically exercised with post-Napoleonic France’s readmission into the
‘Concert of Europe’, agreed at the Vienna Congress – without its constitutional
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