1. Introduction
Carl Schmitt still plays a prominent role in current legal discourse on both the national and the international level, perhaps even more so now than before.Footnote 1 His later work, Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum,Footnote 2 is, in particular, said to demonstrate an ‘astonishing contemporaneity’,Footnote 3 as it already confronted ‘international law within a globalization process’.Footnote 4 However, the prominence of this ‘very present and very powerful ghost from Old Europe's twentieth century past’Footnote 5 must cause some uneasiness, as his ‘reprehensible association with the Nazis and his blatant antisemitism throw a well-founded shadow on his life as well as on some of his writings from that period’.Footnote 6 This is true not only of his writings from that period, but also of those from the post-war period, since his anti-Semitism lingered on. In particular his anti-normativist concept of ‘nomos’ also has this anti-Semitic undertone (section 2). Nonetheless, as Martti Koskenniemi has pointed out, even these indisputable and inexcusable infringements ‘fail to undermine the force of many of his insights about law and the political order’.Footnote 7 Yet these insights have a particular character. The most valuable insights do not necessarily belong to the ‘lessons of Carl Schmitt’,Footnote 8 that is to say, to the explicit content of his writings. Rather, the lesson to be learned from Schmitt can be found in the motivation underlying the explicit doctrine: his fear or, to be more precise, the object of his fear. Thus what I shall try to do is to analyse Schmitt's work in the sense of Freud's concept of negation; that is, as a ‘kind of taking into account the suppressed, actually already a sublation of suppression, although, of course, not an acceptance of the suppressed’.Footnote 9 A close reading of Politische Romantik Footnote 10 reveals the suppressed object of Schmitt's fear to be a particular form of heterarchical connectivity: a network phenomenon (section 3). Hence Schmitt's fear can be used to outline a characteristic form of connectivity within our modern world society (section 4). However, taking into account that in addition to these new heterarchical connectivities the current situation is also characterized by important residues of the former hierarchical order, I suggest that the network model should rather be transformed into a rhizomatic conception (section 5). Against the background of this primary negative approach I shall eventually turn to another possible positive reading of Schmitt's texts, emphasizing the different eigen-rationalities of the political and the juridical sphere (section 6).
2. Nomos and norm
There is a long-standing tradition of conceptions of law combining a certain preference for the spoken word with distrust of positive law. The latter has had a frequent anti-Semitic subtextFootnote 11 since St Paul's teaching of the ‘end of law’ in which ‘Jewish law’ is contrasted with ‘Christian grace’.Footnote 12 Carl Schmitt, the ‘most-discussed German jurist of the twentieth century’Footnote 13 and, according to Hannah Arendt, ‘without doubt the most important man in Germany in the areas of constitutional and public international law’,Footnote 14 is a typical exponent of this tradition. A note in his posthumously published Glossarium, written in 1948, states,
My disapproval of positivism came with growing age. Had it made more sense in youth? Compare with this the disapproval of ‘positivity’ by the young Hegel. Positivity = legality = Jewry = despotism = paroxysm of ‘ought to do’ and norm.Footnote 15
Accordingly, Schmitt's own conception of norm, the ‘nomos’, is described as a deliberately anti-positivist figure, whereas law in a ‘normativist’ sense is supposed to be a phenomenon of degeneration. Schmitt intends to restore to the word ‘nomos’ ‘its initial energy and majesty’, although it had already in the course of time ‘lost its original meaning and had sunk to the level of a general term lacking any substance, a designation for every normative regulation or directive passed or decreed in whatever fashion’.Footnote 16 Nomos is – in a philologically dubious wayFootnote 17 – conceived of as original division and distribution, the ‘Ur-Teilung und Ur-Verteilung’Footnote 18 of a people's land; it is designed as a ‘space-dividing basic operation’.Footnote 19 In this ‘original meaning’, ‘nomos’ is ‘the complete immediacy of legal power not mediated by legislative acts; it is a constitutive historical event, an act of legitimacy, whereby the legality of the mere statutory law is first made meaningful’.Footnote 20 Schmitt understands law as ‘an expression of the fundamental – and irreducibly political – choice on which lay the unity of the human community’.Footnote 21 Thus he had distinguished, in his Verfassungslehre of 1928, between the constitutional law (Verfassungsgesetz) and the constitution itself (Verfassung), describing the latter as the unwritten, basically political, decision that is then patterned by the written constitutional law.Footnote 22 The concept of ‘nomos’ describes this fundamental decision in more detail. The basic legal operation is now regarded as being spatially organized: ‘The Nomos is the immediate form in which the political and social order of a people becomes spatially visible.’Footnote 23 Thus the asserted difficulties of translating the word ‘nomos’ which motivate Schmitt to keep the Greek term are not only a consequence of a ‘gesetzespositivistische Verwirrung’Footnote 24 (confusion of legal positivism) caused by the use of the ‘fatal word’ Gesetz,Footnote 25 but also due to the fact that the wholly adequate term was already in use in a totally different theoretical context. Despite its metaphorical form, which at first glance seems to suggest something else, Kelsen's Grundnorm is the radical antithesis to Schmitt's nomos. Kelsen openly affirms the fictitious, explicitly paradoxical character of this concept.Footnote 26 As a result of this fictitious character the Grundnorm is never an absolute phenomenon. Instead, it always appears mediated and furcated. Its manifest necessity within the framework of Kelsen's theory cannot hide the fact that the nomos has thus become a nomadFootnote 27 crossing every national border. According to the Kelsenian understanding the Grundnorm is a comprehensive principle not only of national, but also of international, law.Footnote 28 This explains why Schmitt, using a typical anti-Semitic stereotype, could blame Kelsen's Pure Theory of Law for its groundlessness.Footnote 29 Not only did Schmitt explain ‘normativism’ as one of the ‘three types of juristic thought’, he also assigned it to an unnamed, yet easily recognizable, people. ‘There are peoples’, Schmitt declares, ‘which exist without soil, without state, without church, only in the law. For them, the normativist thought appears to be the only reasonable thought of law, and every other form of thought is incomprehensible, mystical, fantastic, or ridiculous.’Footnote 30 For others the constitutive legal act had to be something else. As Koskenniemi puts it, ‘Where a people (such as the Jewish) without land or State might well identify itself by reference to a formal law, the German substance – as indeed the substance of Europe itself – was based on principles of identification the most important among which was the original act of land-taking (Landnahme).’Footnote 31 Yet the relationship to common land was, for Schmitt, only one step in order to secure the necessary conditions for the German state and its political as well as its legal system. Resistance to the normativist type of thought committed only to positive law corresponds to an effort to contrast liberal legal egalitarianism with homogeneity of a different kind.Footnote 32 Schmitt fearfully observes that a plurality of voices pronounces the same words and sentences in different ways, and that this phonetic difference has serious effects on legal interpretation. His attempt, then, is to prevent this cacophony and at the same time to preserve the continuity of the legal system, in particular the ‘legally secured position of the German public decision-makers and the independence of judges’. Schmitt searches for a legal system which guarantees predictable decisions beyond the classical liberal trust in the letter of the law. His solution to the problem is Artgleichheit (identity of kind):
We are looking for a bond more reliable, more alive, deeper than the deceptive bond of pervertable letters of a thousand legal paragraphs. Where else could it be than within ourselves and our own nature? Here, facing the inseparable connection of officialdom and judicial independence, all questions and answers lead to the necessity of an identity of kind, without which a totalitarian state [Führerstaat] could not exist for one day.Footnote 33
Consequently, for Schmitt the biggest threat to the legal system is not normativism as such but rather a certain process of ‘degeneration’, Entartung, which in his view is not limited to positivism but also comes with decisionism and a konkretes Ordnungsdenken (thinking of ‘concrete orders’). Thus he considers the three ‘types of juristic thought’ in their ‘sane as well as in their degenerate form’.Footnote 34 The aetiological categories used in this description give a particular tone to an explanation of the necessary elements for a functioning democracy written about ten years earlier:
Every true democracy is based on the idea not only of treating equal things equally, but also, with inevitable consequence, to treat unequal things unequally. Thus, to democracy belongs first, of necessity, homogeneity, and second – if need be – the expulsion or elimination of the heterogeneous.Footnote 35
Obviously it does not occur to Schmitt that democracy might be based on dissent rather than consensus.Footnote 36 Democracy is not conceived of as a political concept based on non-identity, in the sense that democratic procedures establish mechanisms in which governance is consistently fractured, political power bifurcated,Footnote 37 and the status of political subjectivity again and again newly disseminated.Footnote 38 Contrarily, Schmitt regards democracy as a concept based on identity. In his view, the basic precondition for the existence of a legal or a political system is the exclusion of otherness. The stranger, the alien, must be expelled, in order to safeguard social homogeneity and thus the desired equality between state citizens and, finally, the identity of a people and its government. Yet by introducing the concept of Artgleichheit into political and legal theory, he neglects the fact that homogeneity is the product of a certain dialectical process that never comes to an end. The logic of exclusion implies that the expelled person has been part of the expelling community.Footnote 39 Vice versa, the construction of an outer, hostile sphere creates an interior atmosphere of belonging. In both cases homogeneity is made, not given. It remains, therefore, always fragile, as does the distinction between friend and enemy based on it.Footnote 40 Astonishingly, this logic which Schmitt apparently neglects on the national level is described with great clarity in his writings on the problems of international law.Footnote 41 They explain that
[A]ny relative and flexible pacification of Europe is achieved at the expense of the non-European world, against which holy wars – that is, total wars – are directed as a form of release or discharge (Schmitt speaks of Entlastung, ‘unburdening’) of unwanted violence. Europe imports relative peace and prosperity, as it were, by exporting violence.Footnote 42
However, we can detect even in his writings on the national legal and political order figures tending to undermine the supposedly clear-cut distinction between friend and enemy. In particular, in his book Political Theology of 1922 Schmitt presented
a quite different, even contradictory, logic of the political. There, the structural function of the exception – the sovereign Godlike ability to declare a state of emergency and act outside of law – implies that the border between the law and lawlessness is permeable and, by extension, that the relationship of interiority (friends) and exteriority (enemies) is unstable.Footnote 43
Yet on both the national and the international level the consequences remain the same: law in the sense of nomos is a law for equals inside the system, whereas the outsiders are excluded from the basic (as Arendt famously put it) ‘right to have rights’.Footnote 44
One should not be surprised, then, that the specific definition of ‘nomos’ as a territorial operation securing a common ground for a people, given in Der Nomos der Erde (which Schmitt published after the Second World War but which was for the most part written earlier)Footnote 45 has a remarkable predecessor:
Following the will of the Führer is, as Heraclitus told us, a nomos, too . . . When we talk of leadership and the concept of the leader we may not forget that true leaders belong to this fight and that our fight would be hopeless if we had to be without them . . . We have them, and therefore I finish my lecture by telling two names: Adolf Hitler, Führer of the German people, whose will now forms the nomos of the German people, and Hans Frank, Führer of our German legal front, spearhead for our good German law, role model of a national-socialist German jurist. Heil!Footnote 46
3. Law as textual network
Why, then, should we, against the background of such statements, still spend our time reading Schmitt? Why not take the both open and concealed anti-Semitic and fascist motivation as sufficient reason for assuming that modern legal theory has nothing to learn from Schmitt's ideas? In short, ‘why Carl Schmitt?’Footnote 47 Because we can raise the question to what extent the work of this legal scholar ‘corresponds to a problem that transcends the horizon of the suggested solution’.Footnote 48 The interesting phenomenon is, then, not what Schmitt propagated as his ‘doctrine’,Footnote 49 but what he feared most, and yet in this fear, in the ‘courage of his fear’,Footnote 50 perceived accurately and presented at least in an indirect way. Schmitt's thought and work
repeatedly presaged the fearsome world that was announcing itself . . . lucidity and fear . . . drove this terrified and insomniac watcher to anticipate the storms and seismic movements that would wreak havoc with the historical field, the political space, the borders of concepts and countries, the axiomatics of European law, the bonds between the tellurian and the political . . . etc. Such a ‘watcher’ would thereby have been more attuned than so many others to the fragility and ‘deconstructible’ precariousness of structures, borders and axioms that he wished to protect, restore and ‘conserve’ at all costs.Footnote 51
In Schmitt's Politische Romantik the object of this fear is named the ‘occasional’.Footnote 52 This concept is introduced to describe the Romantic movement. Romanticism makes the occasional come to light. By reshuffling a role previously reserved for God with the individual, and thereby subjectifying the traditional occasionalism, Romanticism sets the stage for the view that now everything can ‘really become an occasion for everything, and everything that follows becomes in an adventurous way incalculable’.Footnote 53 What is emerging is
an always new, but only occasional world, a world without substance, and without functional connections, without steadfast leadership, without conclusion and without definition, without decision, without last judgment, endlessly proceeding, led only by the magic hand of chance.Footnote 54
For Schmitt, the meaning of the occasional becomes still clearer by regarding its antipode: the occasional ‘negates the concept of the causa, i.e. the constraint of a calculable causation, and hence every commitment to a norm. It is a disintegrating concept’.Footnote 55 So which phenomenon is it that Schmitt describes here? Schmitt describes occasionalism as a world no longer constituted by a solid common fundament, a world no more characterized by an authoritative last ground binding for all social action taking place on it. Instead, the new Romantic world and its specific acts are constructed by contingent heterarchical connections. Romanticism claims that all its interior possibilities and necessities are created within the system, without any external constraint. From a modern point of view, we could regard this newly established world as the first emergence of a network of communicative operations which, during its communicative processes, experiences its own ‘unfinishability’ and its attached consequences.Footnote 56 These consequences include ‘enabling of communication, despecification of the communicated meaning, favouring of connectability at the costs of form’.Footnote 57 Romanticism presents ‘possibility as the higher category’.Footnote 58 What Schmitt fears, in this context, is not only a process of disintegration, in terms of an ‘individually disintegrated society’,Footnote 59 but also a change of epistemological categories, from substance to function,Footnote 60 and a corresponding conception of reason transforming the old paradigm of hearing into the new one of comparing.Footnote 61 Romanticism initially regards things not necessarily as given but as ‘interesting’.Footnote 62 Everything becomes interchangeable with everything.Footnote 63Causa is understood not as a necessary condition, but – in the legal sense of the word – as an object of conflict and discussion.Footnote 64 Expressed in the vocabulary of systems theory, Schmitt describes a turn from hetero- to self-reference, from the foundation by a preconditioned fundamental connecting point which remains outside the system – God, nature, tradition, and so on – to a process creating its own interior connectivity. ‘The consentement of romantic occasionalism creates a texture untouchable and therefore not disprovable by the outside world.’Footnote 65 Reality, for Romanticism, ‘becomes but an occasion. The object is without substance, without essence, without function, a concrete point around which the romantic play of fantasy is floating’.Footnote 66 Therewith the specific Schmittian concept of function appears. Instead of contrasting substance and function, Schmitt conjoins them. Function is conceived of as a form of natural destination, a substantial quality determining the identity of an object. In contrast, a modern understanding of function would underline its non-substantial aspects. Hence, for instance, Niklas Luhmann explains the basic idea of functional analysis as comparison: if an object can be described by its functional aspects, then it can be described by the fact that it could be substituted with another object equally or even more up to the task. To think of function is to think of functional equivalents and thus of replaceability.Footnote 67 Function becomes an index for the lack of substantial identity. It is this modern concept of function that Schmitt negates. Whereas Kelsen regards the process of functionalization as a specific quality of modern science and thus also as an ‘indispensable postulate for the development of an authentic science of law’,Footnote 68 Schmitt describes it as a process of degeneration.Footnote 69
What we can see from this is that Schmitt's thought is formed by a thoroughly analysed development being simultaneously fiercely combated and negated. There is something appearing inside the theory which the same theory attempts to suppress. With particular regard to the legal sphere, what he observes is a legal system without (territorial) foundation. It is a system that constructs (that is to say, feigns) its own certainties. Schmitt defines it as the conception of legal positivism. Such positivist theory serves ‘as a theoretical ratification of the social process of punctualization or occasionalization of the political foundations – whether these foundations are called state, political unity, or constitution’.Footnote 70 Positivism (or normativism) affirms the baselessness so typical of political Romanticism. In Schmitt's view, the contrast to positivist legalism is marked by the concept of pre-legal legitimacy. Consequently, he regards ‘legitimacy’ as an ‘absolutely unromantic category’.Footnote 71
Thus we can take Schmitt's account of Romanticism as a negative pattern that might be exposed in a different way. The negative image Schmitt draws can be taken as positive description of modern heterarchical linkings characteristic of contemporary law and society. As Schmitt describes occasionalism as a specific ‘texture’ (Gewebe) subverting the idea of a necessary ‘imagination of the last authority, of an absolute centre’,Footnote 72 we can read his description as characterizing a phenomenon of textuality. ‘Textual’ would thus have to be understood not in a narrow sense as a written form of language, but in a more formalized way as a particular form of intertwinement. Such a rather formalized understanding of ‘text’ can be found in post-structuralist perspectives on textuality: a ‘text’ in this sense is ‘henceforth no longer a finished corpus of writing, some content enclosed in a book or its margins, but a differential network, a fabric of traces referring endlessly to something other than itself, to other differential traces’.Footnote 73 This concept of textuality fits nicely into describing the ‘endless proceedings’ of Romanticism. Thus what Schmitt calls the Romantic ‘texture’ is a form of textuality or positivism no longer directly bound to statutes and the hierarchical architecture of legal order. It is a legal system that constructs its own, no longer primarily vertical, but horizontal, heterarchical order. Instead of receiving its legitimacy from a supreme sovereign authority, the different singular legal operations are stabilizing themselves by alternate connections. Text, then, is no longer conceived of only as a written form of legal orders, but assigns the legal operation per se. This idea undermines the concept of a single subject – the sovereign will – deciding the law. The textual model implies self-referential operations without central control:
‘Text’ means ‘tissue’; but whereas hitherto we have always taken this tissue as a product, a ready-made veil . . . we are now emphasizing, in the tissue, the generative idea that the text is made, is worked out in a perpetual interweaving; lost in this tissue – this texture – the subject unmakes himself, like a spider dissolving in the constructive secretions of its web.Footnote 74
This heterarchical, textual conception of law is the main object of Schmitt's fear.
4. A fourth nomos of the earth?
In 1955, Schmitt described three possibilities of a developing global order.
One was a universal empire under one great power – the United States . . . A second alternative was for the United States to take over England's place in the old territorial equilibrium as the ‘balancer’, the external guarantor of Europe's internal peace, accompanied by unquestioned primacy in the Western hemisphere. The third alternative – clearly preferred by Schmitt and perhaps seen by him as the one most likely to emerge – was a structure of territorial division between a limited number of large blocks (Grossräume) that mutually recognized each other and excluded external intervention.Footnote 75
He did not, then, explicitly refer to the possibility of another, textual conception of law based on heterarchical mechanisms of self-referentiality.
However, within our contemporary society, such a conception of law as textual order is no longer a mere object of personal hypersensitivity or theoretical construction. In contrast, it has been the object of one of the most vivid debates in international law within the last years. These debates have dealt with the problem of constitutionalization on the one hand and fragmentation on the other.Footnote 76 Looking at the development of international law in the past few years, one could witness the emergence of a multitude of different specific legal regimes reacting to specific political problems. This phenomenon being fairly undisputed, the actual controversy is focused on the question whether or not these regimes can still be directed by central, superior rules or, contrarily, have to be co-ordinated via internal rules of collision.Footnote 77 International law, so it seems for some observers, can no longer be properly conceived of in terms of a hierarchical order.Footnote 78
From a certain sociological perspective, the perspective of systems theory, this process of fragmentation and pluralization appears as no peculiarity of international law. Rather, it represents an ongoing process in our contemporary world society.Footnote 79 Accordingly, our society increasingly abandons hierarchical modes of organization. Instead, social structures are more and more based on functional differentiation.Footnote 80 These functionally differentiated social systems, as, for instance, economy, law, and science, have developed an internal complexity making it almost impossible to supervise (and thus to govern) the different fields of social action from a central point of view. Thus the sociological perspective substantiates the proclaimed inefficacy of centralized solutions.Footnote 81 In this view, a closer observation of societal structures shows us ‘systems which are, on the one hand, so complex that they allow for a plurality of points of intersection and different chains of actions (and therefore are not determined in respect of unambiguous cause-and-effect chains) and which have, on the other hand (and within certain limits of variation), to remain stable’.Footnote 82 For this reason the traditional scheme of observation has to be modified from strict causality to mere probability. The multitude of potential ambiguous horizontal connections calls for a more complex form of organization which the traditional model based on linear hierarchies cannot offer.Footnote 83 ‘Where complex combinations of regulation and networks of decision-making become decisive, there are dynamics, in particular back couplings, which cannot be caught by using the model of linearity’.Footnote 84 Hence what is needed is ‘a non-hierarchical knowledge’ that is generated by a distributed acentric process. This process ‘produces (by historical dynamics of selectivity) a “process of fitting” of decisions creating its own standards of rightness’.Footnote 85 The development of concrete forms of law adapted to these societal processes, a law whose structures can no longer be determined by a sovereign supreme summit, can be observed in particular in the field of transnational law. ‘Within the emerging world society the hierarchical model of the law of Western legal culture is facing a mutation which turns it into “something different” . . . All our well-known juristic patterns of legitimacy, interpretation and justification lose their foundation.’Footnote 86 What is emerging is a ‘global law without a state’,Footnote 87 woven by a network of interacting courts or court-like institutions,Footnote 88 which, although still mainly national and state-run, such as the national constitutional courts, are becoming increasingly internationalized.Footnote 89 Furthermore, not only public but also legal regimes established by private actors (in particular transnational organizations) have to be taken into account. In this context of an increasing fragmentation and pluralization of law in the international field, every hope for a ‘hierarchically organized or conceptually dogmatic unity of international law’ is, according to Gunther Teubner and Andreas Fischer-Lescano, in vain. Hence after the decline of legal hierarchies ‘the only realistic option is to develop heterarchical forms of law that limit themselves to creating loose relationships between the fragments of law’.Footnote 90
The emergence of this ‘global law without a state’, which Schmitt did not (positively) foresee, although it corresponds in a certain way to his idea of the end of the epoch of statehood,Footnote 91 could be regarded as a cryptic fourth possibility for a new ‘nomos of the earth’.Footnote 92
5. From network to rhizome
But how can we describe this new heterarchical conception of law in a positive way? Which model could serve us to point out its particular characteristics? Obviously, an adequate theoretical model for this new conception of law can no longer be the Stufenbau (the hierarchical ordering), for it is no longer a centralized vertical foundation but a horizontal connectivity that appears to be typical of the new situation.Footnote 93 However, even the metaphorFootnote 94 of the network, currently so fashionable,Footnote 95 does not adequately capture the modern constellation. The imagery of the net still suggests that we can confront the fundamental uncertainty of modern society with a homogeneous, symmetrically organized texture. This perspective underestimates the manifoldness of numerous communicative operations in contemporary society. We have to look for a kind of connectivity that is based neither on hierarchy nor on any other kind of predetermined homogeneity. Thus what comes to the fore is also insufficiently described in terms of a structuralist approach. For the ‘general implication of this method . . . is that elements of a text do not have intrinsic meaning as autonomous entities but derive their significance from oppositions which are in turn related to other oppositions in a process of theoretically infinite semiosis’.Footnote 96 This perspective still attempts to control the irreducible plurality of the given circumstances by pressing them into a predetermined scheme. It operates with the idea of a recognizable underlying ‘syntax’ structuring the legal operations. The same criticism applies to the idea that one could reconstruct ‘from the perspective of the complete system’ a ‘comprehensive context’ by using different elements from within the network figure.Footnote 97 Moreover, the network model tends to suggest that all forms of possible connectivity have turned into the horizontal mode. Thus it neglects important residues of the former order. With particular regard to international law one must acknowledge that ‘while the network model accounts for the diversification of legal regimes and the multiplication of actors in the international legal process, many central building blocks of the traditional international legal system, such as the rules on diplomatic protection or state responsibility, have remained remarkably stable’.Footnote 98
A more adequate description of the modern legal system could use a different, even more pluralistic, model, a model which at the same time subverts any type of model-building: a rhizomatic conceptionFootnote 99 in the sense of Gilles Deleuze and Félix Guattari.Footnote 100 According to their concept, rhizome means – as a sort of ‘generative network’Footnote 101 – a sprawling ramification no longer able to be reduced to a unitary master-pattern. Within rhizomorph formations, the entanglements programme themselves. Internal mechanisms of control in the form of binary codes which have to monitor their own proceedings with respect to continuous connectivity are not bindingly given in advance, but are ‘only the product of an active and temporary selection, which must be renewed’.Footnote 102 Such a texture of self-dependent sprawlings, engraftments, recodifications, and modifying repetitions specifies the previous idea of law in its textuality: as an ongoing process.Footnote 103 Every new ramification is free, for it is neither determined by a previous ensemble nor committed to a particular intention. The dead end is also part of the rhizome.Footnote 104 And yet every nexus is integrated in the texture, for the rhizomatic ‘principles of connection and heterogeneity’ mean that ‘any point of the rhizome can be connected to anything other, and must be’.Footnote 105 The rhizome
enters in alien chains of evolution and knots transversal connections between divergent lines of developments. It is not monadic, but nomadic; it produces unsystematic and unexpected differences; it decomposes and opens; it leaves and connects; it differentiates and synthesizes, all at the same time.Footnote 106
Hence when Schmitt assigns the ‘classical’ as being the ‘possibility of unambiguous, clear decisions’,Footnote 107 then the rhizome can be called the deliberately unclassical, if not to say Romantic, and, in Schmitt's sense, unpolitical texture, which subverts not only its own distinctions, but the idea of sovereign, supreme authority. If, according to Schmitt, within Romanticism ‘everything ceases to be case and object, in order to become a mere point of contact’,Footnote 108 then this description is even more valid for law as rhizomorph texture. Law, one might say, becomes an autonomous, depoliticized issue.
Yet of course we can never be sure that the movement will stop here. There can be no absolute depoliticization.Footnote 109 The rarer politics becomes, the more decisive its remnants might prove to be. We must be aware of the possibility that depoliticization could just as well be ‘the supplementary and inverted symptom, the abyssal hyperbole, of a hyperpoliticization’.Footnote 110 This perspective leads ‘to a change in all the signs, and therefore to having to measure politicization in terms of the degree of depoliticization . . . The less politics there is, the more there is’.Footnote 111 And, where everything is political, nothing is political any more.Footnote 112 Maybe this hyperpoliticization was also one of the objects of Carl Schmitt's fear.
6. The ambivalence of the political
So far we have come to see Schmitt through the eyes of a Freudian analytic, describing which relevant insights in modern society and its legal system are enclosed by his thinking through trying to repress them. We have detected several objects of Schmitt's fear: the fear of a disintegrated society losing its constitutive character of interior homogeneity; the fear of occasionalism, as of a society no longer based on common grounds; the fear of extinction of the political. Thus our reading of Schmitt's work has been primarily a negative one. Yet what Schmitt's negative statements unwillingly describe could also be stated in a positive way: Schmitt observes the emergence of a heterogeneous, functionally differentiated society, that is to say of a form of heterarchical connectivity that might also – and perhaps more properly – be conceived of as a textual, rhizomatic phenomenon. The last-mentioned fear of hyperpoliticization, however, allows for still another rather positive reading. One might see the transition from a hierarchically organized legal system to the rhizome as development from fixed order to fluid process or, to use a Schmittian metaphor, from land to sea.Footnote 113 The question, then, is how the rhizome can avoid becoming an amorphous mass beyond all recognizable differences. Maybe we could read Schmitt's work as an attempt to answer this question. The territorialization of legal and political thought aims at the creation of boundaries between equal opponents. Schmitt's concept of the political, the famous distinction of friend and enemy, is thus ‘genuinely a form of spatial thought, a “concept'” that cannot be thought of independently of spatial relations’.Footnote 114 To this extent it would appear as a somewhat anachronistic idea, since it neglects the dimension of information as the ‘new element that reproblematizes the spatial’.Footnote 115 Yet the distinction can also be regarded in a different context. Where everything is politics, nothing is politics any more – but the contrary seems just as valid. The abolition of the political is a political act.Footnote 116 The attempt to replace policy by policeFootnote 117 merely reproduces the friend–enemy distinction on a new level. The former foe is turned into a criminal, while the underlying mechanisms of inclusion/exclusion are kept intact. Schmitt's idea in this context is that if we cannot avoid these mechanisms, it is better that we should not try to hide them but rather come to terms with them in an open manner.Footnote 118 He argues for an acceptance of difference as opposed to a homogeneous new world order limiting violence at the cost of establishing an imperialistic regime.Footnote 119 Obviously, the problem has not lost its relevance. As Koskenniemi rightly remarks, it is the important task of current international law ‘to avoid that kind of imperialism while at the same time continuing the search for something beyond particular interests and identity politics, or the irreducibility of difference’.Footnote 120 In a peculiar way Schmitt's work might help us to work on this task. Fear of hyperpoliticization thus means fear of de-differentiation. However, in the contemporary world society the differences that we wish to maintain can no longer be understood in spatial terms, thus founding difference on substantial identities.Footnote 121 It goes without saying that a certain kind of ‘American imperialism’Footnote 122 or, more carefully, ‘American unilateralism’Footnote 123 is a particular challenge for the further development of international law. Yet the critique falls short of the problem if the suggested alternative consists merely in a stronger European (or Asian, or African) influence on international law. Rather, the differences have to be regarded in the context of modern (world) society characterized by functional differentiation,Footnote 124 namely a society whose main sectors are no longer primarily spatially determined.
This change of perspective does not exclude stronger enforcement of human rights on an international level. However, such attempts have to be integrated in the larger context of the developing world society. Within the turn from a substantial to a functional perspective human rights can no longer be conceived of as the natural status of substantial entities. They must be described as genuine juristic constructions with a specific social function.Footnote 125 Within a poly-contextual world lacking a central point of observance, it is the task of fundamental rights to secure an independent sphere of action for each societal subsystem, and as such to serve as a bulwark against totalitarian tendencies of individual subsystems attempting to take control of the entire society.Footnote 126 Consequently, the functional perspective is not identical with politicization. In contrast, one has to beware of an instrumental use of human rights turning them into mere means for the justification of new political configurations.Footnote 127 Thus a new ‘“culture of formalism” devoid of instrumentalist undertones’,Footnote 128 as suggested by Koskenniemi with regard to the development of international law in general,Footnote 129 could also be applied to the more specific human rights discourse. ‘Formalism’ in this sense would mean to reflect and respect the specific eigen-value of juridical forms and juridical thinking, as opposed to political decision-making.
What is more, this change of perspective also has decisive influences on the concept of the political. If one wants to keep the political as a distinct sphere of social action, the political itself has to acknowledge the independence of other social spheres.Footnote 130 In this conception, the political has a characteristically ambivalent function – it marks the position of an autonomous social system which by establishing and securing conflict as a general societal principle paradoxically guarantees the coexistence of the conflicting social spheres. This ambivalent function of the political system can be found in the revisions that Schmitt made for the second edition of his Begriff des Politischen.Footnote 131 In contrast to the first edition of the book, Schmitt describes the political in the second edition – in an unmentioned, ‘hidden dialogue’ with ideas from Hans Morgenthau's dissertationFootnote 132 – no longer in the Weberian sense as an autonomous entity just like any other social sphere (such as morality, art, economics, etc.),Footnote 133 but states that it is a concept of intensity.Footnote 134 This ambivalence is another characteristic object of Schmitt's fear: Schmitt feared that in the context of functionally differentiated society
the political is threatened with extinction – and with it, perhaps, the whole structure of modernity itself – if it cannot assert itself as something more or something fundamentally other than merely one of many such differentiated systems . . . Schmitt simultaneously champions the autonomy of the political system as well as the primacy of the political.Footnote 135
Schmitt wants to count on and calculate with stable oppositions.Footnote 136 However, his attempt to stabilize the oppositions coinstantaneously undermines them. Obviously this ambivalence of Schmitt's concept is unsatisfactory. But if we think of – political or legal – mechanisms whose task it is to guarantee a societal (international) order based on functional differentiation without taking control of society as a whole, but respecting the eigen-rationalities of the subsystems, then we may ask: do we have a better answer? Maybe a newly designed network model could at least point towards the direction in which we should look for one.Footnote 137
