It’s difficult to know where to start with this, but to recap, according to Schmitt, spatial orders produce legal orders. This is made as a general claim, but I think it useful to see how Schmitt deploys this in the specific case of international law as jus publicum Europaeum (European public law), this is useful because it illustrates the mechanisms by which this functions and allows us to criticise some of ethical Schmittians. Basically, here Schmitt’s argument is that the jus publicum Europaeum was in an inter-state order in which European states were the participants, all of which were treated as formally equal.
The centrepiece of this system was the so-called ‘bracketing of war’. Essentially, Schmitt argues that in the jus publicum Europaeum states in war would treat each other as a justus hostis – a just enemy:
In the 18th and 19th centuries, European international law achieved a bracketing of war. The opponent in war was recognized as a justus hostis and was distinguished from rebels, criminals and pirates. To the same degree war lost its criminal character and punitive tendencies, thereby ending discrimination between a just and unjust side. Neutrality was able to become a true institution of international law, because the question of the just cause, the justa causa, had become juridically irrelevant for international law.This had a number of concrete effects: firstly, wars of annihilation no longer tended to happen, since the enemy was always a ‘just’, public enemy as opposed to an absolute one and secondly, these wars would no longer threaten the whole nomos (viz. the spatial order). In international law circles, a lot of people have taken this as being pretty interesting, and used it as a kind of ethical dimension to Schmitt. The argument is often deployed against supporters of humanitarian intervention – who argue that in designating one enemy as being unjust, evil etc. it paradoxically produces wars which are unrestrained.
But this kind of ethical (limited) endorsement of Schmitt is rather undermined by Schmitt’s point as to the spatial foundation of this European order. Essentially, Schmitt argues that ‘appearance of vast free spaces and the land-appropriation of a new world made possible a new European international law among states: an interstate structure’ (p.140). Basically, Schmitt’s argument is that the European inter-state order (and its bracketing of war) depended upon the existence of an area of free space where unlimited war could be displaced:
The significance of the amity lines in the 16th and 17th century international law was that great areas of freedom were designated as conflict zones in the struggle over the distribution of the new world. As a practical justification, one could argue that the that the designation of a conflict zone at once freed the area on this side of the line – a sphere of peace and order ruled by European public law – from the immediate threat of those events “beyond the line,” which would not have been the case had there been no such zone.And:
This spatial order did not derive essentially from internal European land-appropriations and territorial changes, but rather from the European land-appropriation of a non-European new world in conjunction with England’s sea-appropriation of the free sea. Vast, seemingly endless free spaces made possible and viable the internal law of an interstate European order.So, the ethically valuable justus hostis for Schmitt depended on vast tracts of ‘free space’. And guess what, when Schmitt is talking about ‘free land’ he isn’t talking about uninhabited land. Above all for Schmitt, this ‘free land’ is that of the ‘new world’, viz. land that is inhabited by the ‘uncivilised’. So, for Schmitt, the Westphalian system depends on an imperialist system, whereby certain peoples don’t even merit being treated as an ‘enemy’ but simply inhabitants of ‘free space’.
Evidently, this isn’t great for those who would wish to appropriate Schmitt’s thought. But, beyond this, it is necessary to inquire what exactly Schmitt means by ‘free space’, and how he ascribes this quality to the ‘new world’. Probably the most pertinent thing to note is this:
The struggle for the land-appropriation of the New World and for land still free and outside Europe now became a struggle among European power complexes, which, in this specific sense, are “states”. Whoever lacked the capacity to become a “state” in this sense was left behind.Furthermore:
The intellectual advantage was entirely on the European side, so much that the New World simply could be “taken,” whereas, in the non-Christian Old World of Asia and Islamic Africa, it was possible only to establish subjugated regimes and European extraterritoriality.This gives us a window to more broadly consider Schmitt’s claim. In a sense, his argument as to the relationship between intra-European relations and imperialism/colonialism mirrors Marxist claims about imperialism. So, the classic Marxist position is (a variant of the idea) that capitalist social relations internal to European states mean that there comes a point when capital must search for new markets (for whatever reason – this can be over-production, under consumption and class struggle), as such it becomes necessary to expand into the peripheries (these may be non-capitalist, semi-capitalist, less advanced etc.). But Schmitt simply doesn’t do this, indeed, as I noted on the previous discussion of appropriation, he really doesn’t think through why it is that Europe seeks to find ‘free space’. So, although he outlines some kind of drive towards this process, he doesn’t really grapple with the question of whether there is any logic to it. An especially useful reference point here is of course David Harvey and his notion of the ‘spatial fix’; here, whilst paying the correct amount of attention to the importance of space, Harvey understands that this is driven by a social logic of capital accumulation.
The notion that we are dealing with a process driven by social relations allows us to interrogate Schmitt’s conception of ‘free space’. In the discussion above it seems like Schmitt is making two points. First, the new world was not composed of states and so is not included in the order, and as such dominated. Secondly, owing to the intellectual and technology difference between Europe and the ‘new world’ Europe could treat the new world as if it was free space. Thus, for Schmitt, ‘free space’ is a kind of social fact, which the law recognises and accounts for. This view is highly problematic for a number of reasons. But two spring to mind immediately, firstly, as Mutua notes (‘Why Re-Draw the Map of Africa?’ (1995) 16 Michigan Journal of International Law 1113, at p.1126), a number of African states met the criteria for statehood, but were nonetheless subject to colonisations. Secondly, the kind of technological determinism Schmitt engages in doesn’t explain why it is the more technologically advanced European states did not dominate less advanced European states.
Thus, there doesn’t seem to be anything ‘pre-given’ about the idea that this is free space. But the notion of the spatial fix helps us see that it is not so much that these spaces were intrinsically ‘free’ and, driven by capital accumulation it was necessary that they be posited as such. The Marxist notion of the spatial fix helps us push this account, inasmuch as it explains the dynamics underlying the creation of ‘free space’ and why certain zones are designated as free. It is here, that some of the positions outlined by Schmitt above can come in; the process of capital accumulation on a world scale necessitates the idea that certain zones be designated as ‘free space’. In practice though, this is going to depend on a number of factors, the level of resistance to the process, the level of development of the country, inter-imperialist rivalry etc. Thus, rather than being an unproblematic ‘fact’ ‘free space’ is a unity of historical, social, political and economic determinations – space is a social relation.
This complexity also underlines another problem with Schmitt’s analysis. As I noted in the piece on appropriation Schmitt occasionally seems to succumb to a positivist temptation of treating law as recognising certain ‘facts’, thus ignoring its constitutive complicity in the creation of such facts. ‘Free space’ is a great example here. In Schmitt’s account, the ‘fact’ of free space (and this is repeated in his considerations of the air and the sea) seems to precede law: law then recognises this fact and is simply not active in those areas of free space (hence ‘beyond the line’ there was no law). But in recognising that there is nothing ‘intrinsically’ free about free space, we understand that its existence is always posited as such, as part of a complex social and political process. But this positing only takes place through the law; the claim that an spatial configuration is ‘free’ is always a legal one – indeed the notion of ‘freedom’ in this respect is legal. It is not enough to say that law isn’t ‘active’ here (since that is likely untrue anyway), since the declaration that ‘different standards apply’ is always a legal one.
Thus, we can see that whilst legal orders are driven by complex spatial considerations (which themselves are driven by processes of accumulation); legal argument is also used to create new assertions of ‘free space’. I think here it is useful to turn to a post I made a while ago – here – on the relationship of particular configurations of imperial power to legal argument. Thus, I would argue that given spatial configurations (understood as driven by capitalist social relations – imperialism) produce distinctive modes of legal argument. But, also, that in so doing imperialists may try and argue for new spatial configurations through the legal form. For, as I have argued time and time again, what is the war on terror if not an attempt to entrench a hegemonic coalition through the articulation of zones of free space? The logic of the war on terror, which tends to promote temporally and spatially unlimited forms of intervention for some states is ultimately an attempt to argue that those states which are not ‘on board’ are ‘free zones’ in which intervention can always take place (witness Pakistan for a great example of this).
Ok, so this is admittedly a bit muddled, and I want to do some more reading, but I do think that bringing Marxists to bear on Schmitt’s framework here does produce something quite useful.