division and distribution of land (
y
) externally, the land-appropriating
group is confronted with other land-owning groups and powers. In this
case, land-appropriation represents a legal title in international law
(Schmitt 2003, 45).
If this sounds like the tautological identification of power with legitimacy
that generates legality, Schmitt charges legal positivists of being ‘content to
reject as ‘‘unjuridical’’ the question of what processes established this order’
(Schmitt 2003, 82), raising the expectation of an extra-jurisprudential
explanation of the Conquest. Does concrete-order-thinking capture the nexus
between the sources and dynamics of the conquest and the spatial ordering
of the new
nomos? If Schmitt’s institutional historicism immunizes against
the timeless verities of realist provenance, it embraces simultaneously an
asociological and non-geopolitical stance that fails to decipher the encounter
between the land-appropriating and land-owning group: the nature of 16th
Century Spanish absolutism, the relations between the
Conquistadores and
the Spanish Crown, the spatio-temporally differentiated inter-imperial rela-
tions between the expanding European overseas empires remain unexamined.
Schmitt’s non-sociological account of the Discoveries is compounded by the
absence of an enquiry into the ‘inter-national’ nature of the encounter. The
native Amerindians remain missing from his account of the regionally dif-
ferentiated resolutions of land and property conflicts in the Americas. They
are not even acknowledged as passive bearers and victims of the incoming
Spaniards and Portuguese. They are nullified and written out of history, as
Schmitt conceived of the Americas as a de-subjectified vacuum. The concrete
processes of land-appropriation, distribution, and property-relations in the
Americas – the geopolitical encounter with the natives as historical subjects –
remain not only off-screen, but by definition outside any purely (geo-)political
notion of conquest-as-concretion (Anderson 1974, 60–84; Wolf 1982;
Cocker 1998). In this sense, concrete-order-thinking remains blunt, as the
concepts for specifying the dynamics of social property and authority rela-
tions that drive overseas expansion are nowhere developed or deployed.
Schmitt’s concrete-order-thinking does not provide an international his-
torical sociology of clashing property relations and subsequent geopolitical
world-ordering, but a rudimentary and failed attempt to develop a con-
ceptualization of international law and geopolitics that ultimately regresses
into a eurocentric historico-legal theory of geopolitical occupation.
7
A void
opens up at the centre of Schmitt’s concrete-order-thinking – the absence of a
7
Even sympathetic commentators criticize that Schmitt’s ‘own ideas on concrete orders
were the least detailed and developed parts of his work. (
y
) We are left not only with a sense
of incompleteness, but with a general vagueness’ (Bendersky 2004, 30).
Fatal attraction: Schmitt’s international theory 195
sociology of property and power. In the end, Schmitt provides no answer to
his own question: What processes established this order?
This gap between theoretical ambition and substantive result leads to
another contradiction. Schmitt’s discussion of the rationalization –
jurisprudentially and materially – of the colonization process by the Christian
powers of Spain and Portugal reveal, quite paradoxically, that the Conquests
did not precipitate the ‘spatial revolution’ and the subsequent rise of the new
European interstate nomos that he generically associated with the enclosure
processes overseas. This is most clearly expressed in his differentiation
between the
rayas and the amity-lines. The first repartition of the oceans after
the Discoveries in form of the
rayas (divisional lines) meant the territor-
ialization of the seas and the newly discovered lands. America, the Atlantic
(and the Pacific) remained firmly within the reach of the late medieval pre-
global law-governed cosmos of the
res publica Christiana, including the
papal missionary mandate and the just war doctrine over and against non-
Christians (Schmitt 2003, 80). At least formally, the Vatican remained the
central supra-territorial source of adjudication in catholic Europe.
8
The initial post-Conquest partition of the world between the Catholic
powers along the
rayas was only challenged by the Spanish–French Treaty of
Cateau-Cambre´sis (1559) and the subsequent Anglo–French and Anglo–
Spanish 17th Century treaties that fixed the amity-lines, dividing the world
into a civilized – law-governed – zone within these lines and an anarchic zone,
a state of nature, ‘beyond the line’. This designated not only the land, but also
the sea ‘beyond the line’ as ‘free’ and lawless.
Res nullius is also res omnius –
up for grabs by the strongest taker. Schmitt therefore locates the decisive
break from the medieval-Christian
ius gentium to the ius inter gentes not
in the fact of the Discoveries
per se, but in the transition from the Spanish–
Portuguese
rayas-system to the Anglo-centric amity-lines. This initiated
America’s redefinition from an integrated appendix of the euro-centric
‘Old World’ to a distinct ‘New World’ to be re-appropriated and divided
in a morally neutered agonal contest according to the law of the stronger.
9
Absolutism: public state or dynastic sovereignty?
Having delinked the Discoveries from the rise of the European nomos, the
decisive passage from the
ius gentium to the ius publicum europaeum is
now precipitated by the rise of the state. ‘The conceptual elaboration of
8
This practice of conditional territorialization was in line with prevailing feudal social
property relations (Teschke 1998).
9
There is no evidence, according to Jo¨rg Fisch (1984), that the European legal profession
distinguished at the time between a law-bound sphere ‘within the line’ and a lawless sphere
‘beyond the line’.
196
B E N N O G E R H A R D T E S C H K E