# The Framework of War and Imperialism in Carl Schmitt's Philosophy

Arthur Guezengar

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Arthur Guezengar. The Framework of War and Imperialism in Carl Schmitt's Philosophy. Waging War and Making Peace, 4, De Gruyter, pp.71-108, 2024, 9783110764758. 10.1515/9783110764758.hal-04806618

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# The framework of War and the Imperialism in the Philosophy of Carl Schmitt

Arthur Guezengar

Université Versailles Saint-Quentin-en-Yvelines

*Waging War and Making Peace: European Ways of Inciting and Containing Armed Conflict, 1710–1960*, pp. 71-102, Volume 4 in the series History and Ideas

https://doi.org/10.1515/9783110764758

## Introduction

Despite the internal divisions among European states, these nations embarked on an unprecedented expansion beyond their continental boundaries, giving rise to vast overseas empires during the early sixteenth century and eventually establishing near-global dominance by the late nineteenth century. To illustrate the magnitude of this expansion, a comparison can be drawn: Carthage, at its height in 220 BC<fnref n="1" />, controlled an ultra-marine territory spanning around 300,000 km<fnref n="2" />, whereas the Spanish colonial empire, at its zenith between 1559 and 1643, extended over more than 22,000,000 km<fnref n="2" />.<fnref n="2" /> This dual movement – acknowledging state sovereignty within the European realm while pursuing seemingly boundless expansion beyond its borders – constitutes a fundamental aspect of European identity and its interaction with the broader world.<fnref n="3" /> European states derived their legitimacy by recognizing both the sovereignty of other states over their own territories and by regarding extra-metropolitan regions as either unclaimed or non-sovereign, thereby legitimizing their conquest. This movement commenced in the sixteenth century with the colonization of the Americas and reached its zenith during the nineteenth and early twentieth centuries when European powers contended for colonial empires of their own.

Drawing from the insights of Carl Schmitt, this chapter aims to illuminate the process of shaping the right to wage war as a sovereign prerogative, one that effectively excluded non-European states. The decline of colonial empires in the aftermath of the two world wars

<footnote n="1">¹ Rein Taagepera, “Size and Duration of Empires: Growth-Decline Curves, 600 B.C. to 600 A.D”, *Social Science History* 3/4 (1979): 115–38.</footnote>

<footnote n="2">² Simona Boscani Leoni, “Between the Americas and Europe: Mapping Territories through Questionnaires, 16th–18th Centuries”, in *Connecting Territories: Exploring People and Nature, 1700–1850*, edited by Simona Boscani Leoni, Sarah Baumgartner, and Meike Knittel, (Boston: Brill, 2022), 23–53.</footnote>

<footnote n="3">³ Luigi Nuzzo “Rethinking Eurocentrism: European Legal Legacy and Western Colonialism”, in *Diritto: Storia e Comparazione – Nuovi Propositi per un Binomio Antico*, eds. Massimo Brutti and Alessandro Somma (Frankfurt am Main: Max Planck Institute for Legal History and Legal Theory, 2018), 359–378.</footnote>
and the emergence of local independence movements contributed to the removal of the right to wage war from the European sphere. Simultaneously, it brought about the resurgence of the “just war” paradigm, which had been marginalized during the construction of modern nation-states. It's worth noting that like Martin Heidegger, Schmitt's intellectual legacy remains indelibly marked by his association with the National Socialist regime in Germany. Prior to 1933, Schmitt espoused a conservative stance advocating for a dictatorship capable of countering both Communism and Nazism. However, he quickly aligned himself with the Nazis once they came to power, striving to position himself as the official legal scholar of the Third Reich.

Nevertheless, Schmitt's collaboration with the Nazi regime, controversial as it may be, does not diminish his value as an astute observer of the regime's legal structures and its relationship with geopolitical developments.<fnref n="4" /> Spanning a lengthy academic career, Schmitt directly witnessed the political and legal transformations of the twentieth century. As a citizen of a defeated nation in the Second World War, his work critically examines what he characterizes as the resurgence of the just war paradigm in the wake of the United States' emergence as a global superpower on the international stage. This perspective allows him to construct a retrospective analysis of the origins of modern law and the establishment of a European legal framework rooted in state sovereignty.

## A political dynamic of spatial annexation

The significance of Carl Schmitt's scholarship lies in his capacity to scrutinize the intricate interconnections between political authority and legal frameworks. In contrast to the tenets of legal positivism advocated by Hans Kelsen in his seminal work, *Pure Theory of Law*, wherein the law is posited as the cornerstone of political organization and a force that both shapes and constrains it, Schmitt posits that the legal order is a product of political determinations.<fnref n="5" /> As noted by Ian Bryan, Kelsen's jurisprudential cogitations are “centered upon a critique of the concepts of the State and of sovereignty”.<fnref n="6" /> Kelsen's primary objective is to challenge the prevailing conception of law as a manifestation of an extraneous political authority that operates beyond the purview of the legal framework. He queries the notion that the State

<footnote n="4">⁴ Hugo Ball, “Carl Schmitt’s Political Theology”, *October* 146 (2013), 65–92.</footnote>

<footnote n="5">⁵ Francesca Ferraro, “The Kelsen/Schmitt Debate: Heller’s Solution and the Future of Europe”, in *The Space of Crisis: Images and Ideas of Europe in the Age of Crisis, 1914–1945*, eds. Vittorio Dini and Matthew D’Auria (Brussels: Peter Lang, 2013), 181–195.</footnote>

<footnote n="6">⁶ Ian Bryan and Peter Langford, “Hans Kelsen’s Theory of Legal Monism: A Critical Engagement with the Emerging Legal Order of the 1920s”, *Journal of the History of International Law* 14 (2012): 51–86.</footnote>
possesses an autonomous will of its own, asserting instead that the State is merely an idealized construct derived from the personification of normative relationships within a legally valid order. In this perspective, the paramount concern centers on the validity of the legal order, with the State perceived as bereft of genuine political volition.⁶ This conceptualization of the nexus between law and the State stands in stark contrast to that of Carl Schmitt, who, conversely, maintains that law emanates from political determinations: “Law is present where decisions are made; where there is a decision without appeal, there is the sovereign; and where the sovereign's decisions transpire, there is the state of exception”.<fnref n="7" />

This perspective affords him the opportunity to elucidate the dynamics and paradigmatic shifts inherent in the various legal frameworks governing the relationships between individuals and institutions within a designated spatial domain. For Schmitt, the legal order does not subsist in isolation but is integrally situated within the political system that begets it. This approach to the interplay between law and politics finds manifestation in the concept of “nomos”, a notion Schmitt counterposes to the Aristotelian metaphysical concept of “noos”. The “noos” embodies a universal archetype, encompassing the entirety of the human species, while in stark contrast, the “nomos” pertains to a spatially and temporally circumscribed reality.<fnref n="8" /> In this framework, law emerges as the tangible expression of political volition, rather than as the wellspring of public action. Every legal order is inherently tethered to a specific geographical jurisdiction. As explain Emile Perreau-Saussine, the Schmitt’s conception of law is thinkable only by reference to the territory, and there is no such thing as natural right or universal order.<fnref n="9" /> The spatial dimension occupies a central position in Carl Schmitt's intellectual framework and shapes his views on the emergence and progression of the modern state. As elucidated by William Hooker:

> According to Schmitt, changes to the nature of spatial consciousness over time both made the state form possible in the first place, and then came to pose a mounting challenge to the continuing coherence of the state concept in late modernity.<fnref n="10" />

Schmitt endows the law with a telluric dimension, observing that: “In this way, the earth is bound to law in three ways. She contains law within herself, as a reward of labor; she

<footnote n="7">⁷ Ball, “Carl Schmitt’s Political Theology”, 85.</footnote>

<footnote n="8">⁸ Carl Schmitt, *The Nomos of the Earth in the International Law of the Jus Publicum Europaeum* (New York: Telos Press, 2003), 78.</footnote>

<footnote n="9">⁹ Émile Perreau-Saussine, “Carl Schmitt contre la guerre juste”, *Commentaire* 96/4 (2001): 972–974.</footnote>

<footnote n="10">¹⁰ William Hooker, *Carl Schmitt’s International Thought: Order and Orientation* (Cambridge: Cambridge University Press, 2009), 69.</footnote>
manifests law upon herself, as fixed boundaries; and she sustains law above herself, as a
public sign of order. Law is bound to the earth and related to the earth".<fnref n="11" /> The terrestrial
expanse presents an array of physical constituents, comprising both natural elements such as
rivers, mountains, meadows, and those fashioned by human agency, including pastures,
hedges, fences, and building structures, which collectively facilitate its delineation. The
concept of landownership is predicated upon humanity's capacity to partition the terrain into
discrete parcels, whether held individually or collectively, for the purposes of cultivation and
sustenance, with the potential for bequeathment to successive generations. In a manner
reminiscent of Rousseau's thought in *Discourse on the Origin and Foundations of Inequality
Among Men*, wherein the demarcation of boundaries was posited as the inaugural gesture
ushering forth the development of property and civilization, albeit to the detriment of
humanity, Carl Schmitt asserts that the competence to define and maintain territorial bounds
constitutes the bedrock upon which the legal order is founded. Consequently, land assumes a
paramount role within this context, serving as the most conspicuous wellspring and corporeal
embodiment of the legal order's inception.

Confronted with the terrestrial essence of law, Schmitt juxtaposes the concept of land
with that of the sea, portraying it as an untrammeled and unregulated domain. While human
labor may extract resources from the sea, akin to the utilization of land resources, the inherent
challenge of demarcating distinct maritime territories beyond the immediate coastal regions
renders the sea an impartial expanse, open to utilization and exploitation.<fnref n="12" /> This notion of an
inherent dichotomy between land and sea continues to be enshrined within the principles of
international law, notably exemplified by the United Nations Convention on the Law of the
Sea, ratified in 1982, wherein international waters are regarded as a global public good.<fnref n="13" />
From a legal standpoint, territorial sovereignty is legally enforceable only within a twelve-
nautical-mile radius from a state's coastal boundaries, beyond which the principles of
maritime law and freedom of navigation take precedence. Even with the establishment of a
200-mile Exclusive Economic Zone and the institution of the International Tribunal for the
Law of the Sea, the legal doctrine of an open sea, originally advanced by Grotius, remains
intact.<fnref n="14" /> This juxtaposition of land and sea assumes a central role in Carl Schmitt's analytical
framework and serves to distinguish his perspective from the Lockean interpretation of

<footnote n="11">¹¹ Schmitt, *The Nomos of the Earth*, 42.</footnote>

<footnote n="12">¹² Schmitt, *The Nomos of the Earth*, 42.</footnote>

<footnote n="13">¹³ John Stevenson and Bernard Oxman, "The Future of the United Nations Convention on the Law of the Sea", *The American Journal of International Law* 88/3 (1994): 488–499.</footnote>

<footnote n="14">¹⁴ Bernard Oxman, “The Territorial Temptation: A Siren Song at Sea”, *The American Journal of International Law* 100/4 (2006): 830–851.</footnote>
property's origins. According to Schmitt, the genesis of property and, by extension, the entire
legal system, does not stem from labor but rather from the capacity to appropriate land and
delineate spatial boundaries.

This land-centric approach to law prompts Schmitt to contemplate political action and
legal formation through the lens of appropriation dynamics. He posits that “land-appropriation
grounds law in two directions: internally and externally”.<fnref n="15" /> The annexation of territory
become a social process encompassing both the allocation of land within a community and its
interactions with other social groups pursuing expansionist agendas: “Externally, the land-
appropriating group is confronted with other land-appropriating or land-owning groups and
powers”.<fnref n="16" /> Consequently, land acquisition emerges as an instrument for political and social
organization, facilitating the internal structuring of the group and demarcating it from other
human collectives. According to Schmitt, these expansion and confrontation mechanisms,
intertwined with territorial acquisition, constitute the very genesis of the concept of law,
predating the emergence of modern concepts such as territorial sovereignty. This is primarily
a historical occurrence, not merely a theoretical construct; as Schmitt asserts, “we must not
think of land-appropriation as a purely intellectual construct, but must consider it to be a legal
fact, to be a great historical event”.<fnref n="17" /> Land appropriation signifies the pivotal moment that,
through its internal and external dynamics, entails the evolution of legal frameworks.

By establishing this as the foundation of his contemplation on legal development,
Schmitt advances the notion that the progression of civilization is intrinsically tied to
territorial conquest dynamics, as opposed to the state's regulation of violence, as described by
Norbert Elias in *The Civilizing Process*.<fnref n="18" /> In his pursuit to comprehend the distinct role played
by the law of war within the Western legal framework, Schmitt's analysis furnishes a crucial
insight into how the interplay between legal constructs and land acquisition has unfolded
throughout global history.

The “just war”: A medieval paradigm

Carl Schmitt's analysis, as expounded in *The Nomos of the Earth: In the Law of Nations* of Jus Publicum Europaeum, primarily centres on what he terms the “global law of nations”. This

<footnote n="15">¹⁵ Schmitt, *The Nomos of the Earth*, 45.</footnote>

<footnote n="16">¹⁶ Schmitt, *The Nomos of the Earth*, 45.</footnote>

<footnote n="17">¹⁷ Schmitt, *The Nomos of the Earth*, 46.</footnote>

<footnote n="18">¹⁸ Andrew Linklater and Stephen Mennell, “Norbert Elias, The Civilizing Process: Sociogenetic and Psychogenetic Investigations – an Overview and Assessment”, *History and Theory: Studies in the Philosophy of History* 49/3 (2010): 384–411.</footnote>
concept delineates the evolution of the right to wage war from the Renaissance era onward and the gradual establishment of the sovereign state paradigm. It is important to note that this global law is not alike contemporary international law, designed to govern all interstate relations across the globe. As indicated by the subtitle of Schmitt's work, this all-encompassing international law is inherently Eurocentric in nature, governing relations within the European public sphere while excluding the extra-European realm from its purview. Thus, the notion of globality should not be misconstrued as synonymous with universality; it does not pertain to a law meant for universal application but rather signifies Europe's stance vis-à-vis the rest of the world. Schmitt employs this concept to denote the emergence of a "global image of the earth".<fnref n="19" /> Even if he acknowledges the existence of geopolitical relations and early legal agreements among ancient states, exemplified by the treaty between Pharaonic Egypt and the Hittite empire in 1279 BC, these relationships are embedded within a pre-global order that had yet to grasp the totality of the world as a unified entity.<fnref n="20" />

Although Schmitt may show limited interest in pre-global inter-state relations, he allocates a distinct position within his analysis to the issue of law in medieval Europe. In his view, the medieval world's unity was primarily underpinned by its Christian character rather than by any European geographic delineation. Schmitt places particular emphasis on the concept of the "Respublica Christiana," which served as the foundation for the political and legal structuring of the European spatial order. The legends surrounding the kingdom of the priest John and the quest for alliances with Christian kingdoms situated beyond the Muslim world serve as illustrative examples demonstrating that the medieval world primarily identified itself with Christianity rather than with any spatial demarcation.<fnref n="21" /> Despite the conflicts stemming from the schism between the Catholic and Orthodox Churches, with the Fourth Crusade representing a significant manifestation of this divide, the legal framework of medieval society was grounded in the notion that a Christian community existed, beyond which the fundamental principles of law ceased to be applicable:

> The soil of Islamic empires is considered to be enemy territory that could be conquered and annexed in crusades. Such wars *eo ipso* [in and of themselves] not only had *justa causa* [just cause], but, when declared by the pope, were even holy wars. The soil of European Christian princes and peoples is distributed, according to the land law of the time, among princely houses and crowns, churches, cloisters and sponsors, lords of the

<footnote n="19">¹⁹ Schmitt, *The Nomos of the Earth*, 54.</footnote>

<footnote n="20">²⁰ Schmitt, *The Nomos of the Earth*, 53.</footnote>

<footnote n="21">²¹ Christopher Taylor, “Global Circulation as Christian Enclosure: Legend, Empire, and the Nomadic Prester John”, *Literature Compass* 11/7 (2014), 445–459.</footnote>
land, castles, marches, cities, communities, and universities of various types. The essential point is that, within the Christian sphere, wars among Christian princes were bracketed wars.<fnref n="22" />

At the core of the medieval nomos' land annexation mechanisms lies the paradigm of just war. The binary division between the realm of Christianity and non-Christian spaces, whether pagan or Muslim, which underpinned medieval laws of warfare, was fundamentally grounded in a moral interpretation of conflict. The presence of a higher moral order provided the ethical basis for warfare and the subsequent annexation of lands, all with the overarching goal of propagating the Christian faith globally. The concept of a "mission", entrusted to Christian rulers, served as a moral justification for any conflict waged against non-Christian populations. In contrast, internal conflicts within the Christian world were excluded from these religious and moral underpinnings of war. This does not imply that such conflicts did not occur or that medieval law did not account for them, but rather that they lacked a moral rationale.<fnref n="23" />

The absence of moral legitimacy posed a hindrance to conflicts between Christian Princes. Given their shared moral framework, it was easier to prevent a scenario in which one party could invoke the religious authority conferred by a just war, potentially jeopardizing the unity of the Christian world. This inclination to circumscribe internal conflicts is notably evident in a series of legal and moral codes aimed at regulating and mitigating the violence associated with internal wars. This included guidelines for the treatment of prisoners and the prohibition of the crossbow's use in 1139 during the Second Lateran Council. While this prohibition had various limitations, notably applying only within the context of "unjust wars"<fnref n="24" />, it nonetheless reflects the ecclesiastical authorities' intent to oversee and regulate military practices.

While Carl Schmitt acknowledges the significance of dynastic conflicts and religious disputes, including the protracted struggle between the emperor and the pope from 1046 to 1216, he posits that these conflicts did not fundamentally undermine the medieval social order. He contends that these disputes did not represent a conflict between the Church and the State like the confrontations that roiled French or German societies in the late nineteenth century.<fnref n="25" /> Consequently, Schmitt tends to downplay the impact of all conflicts and religious

<footnote n="22">²² Schmitt, *The Nomos of the Earth*, 58.</footnote>

<footnote n="23">²³ Stipe Buzar, “The Principle of Double Effect and Just War Theory”, *Philosophia* 48/4 (2020): 1299–1312.</footnote>

<footnote n="24">²⁴ Schmitt, *The Nomos of the Earth*, 141.</footnote>

<footnote n="25">²⁵ Schmitt, *The Nomos of the Earth*, 61.</footnote>
tensions that may have animated the medieval Christian sphere. Schmitt's perspective leads him to assert that various historical events, such as the separation of the Eastern and Western Churches in 1054, the Great Western Schism of 1378-1417, or the Albigensian Crusade in the early thirteenth century, were not substantial enough to disrupt the established order of Christendom. In his analysis, these crises did not pose a fundamental challenge to the prevailing social and political structure within the medieval Christian world.<fnref n="26" />

The Muslim world occupies a distinctive position within this framework of justifying conflicts, for it not only serves as a legitimate realm for conquest but also as a true “enemy” of Christianity. The struggle against Islam is thus infused with a heightened religious sanctity, taking the form of a holy war legitimized by the supreme authority of the Catholic Church, embodied by the Pope. This dynamic of just war is notably prominent in the context of the Spanish Reconquista, where it contributes to a significant shift in the nature of conflicts between Christian and Muslim kingdoms.<fnref n="27" /> The war against the adversaries of Christianity assumes the character of a moral duty in an almost Kantian sense, where Christianity supplants the notion of universality. Kant grounds the universality of moral law in the capacity of everyone to adopt their own maxim in accordance with a universal practical reason.<fnref n="28" /> However, within the framework of medieval law, the duty to combat the enemies of Christianity was a responsibility shared by all Catholic rulers, stemming from their affiliation with the Christian world. The concept of a common adversary thus serves to exclude the target group from a legal and moral order with aspirations of universality, thereby validating conflict and the annexation of enemy territories.

This moral approach to war, inherent to the medieval European order, plays a pivotal role in structuring the world into two distinct spheres: a non-Christian space where war may be deemed just and necessary on one hand, and a Christian space where it must be delimited and regulated on the other. This dichotomy between friend and foe, which Carl Schmitt posits as the foundational element of politics, delineates the unity of Christianity in contrast to a domain perceived as that of the adversary, where war naturally appears legitimate. Nevertheless, concurrently, there is an expansion of the just war paradigm that extends beyond the binary opposition between the Christian world and the non-Christian world. It

<footnote n="26">²⁶ Robert Moore and Nelson Jinty, “The War against Heresy in Medieval Europe”, in *The Creighton Century, 1907–2007*, eds. David Bates, Jennifer Wallis and Jane Winters (London: University of London Press, 2009), 287–317.</footnote>

<footnote n="27">²⁷ Simon Barton, “From Tyrants to Soldiers of Christ: The Nobility of Twelfth-century Léon-Castile and the Struggle against Islam”, *Nottingham Medieval Studies* 44 (2000): 28–48.</footnote>

<footnote n="28">²⁸ Immanuel Kant, *Critique of Practical Reason: And Other Writings in Moral Philosophy* (New York: Garland, 1976).</footnote>
transforms into a tool for justifying conflicts within the Christian realm. This evolution of the
theory of just war begins to take shape in the twelfth century, significantly influenced by
Thomism. In this progression, the concept of a just war no longer relies on a spatial and
cultural dichotomy but instead becomes an internal benchmark used to identify the legitimate
applications of violence based on the inherent nature of the actions themselves, rather than the
characteristics of the targeted spaces. The Just war transitions from a primarily theological
consideration to a moral and legal theory with its own jurisprudential dimensions, aiming to
both justify and circumscribe the utilization of force:

> While in theory the use of limited force seems morally justifiable, the goal of peace that is part of the Thomistic right intention criterion must not be forgotten. In other words, while it seeks to establish *tranquillitas ordinis* in which the use of force will continue to play a role, a habituation to employing limited force needs to be avoided.<fnref n="29" />

The legitimate utilization of violence is intrinsically tied to the pursuit of the good,
which itself is grounded in the concept of natural reason guiding human conduct.
Accordingly, a war can be deemed “just” if it can be connected to natural motivations,
such as self-defense, assisting an imperiled ally, or seeking retribution for a suffered
offense. As elucidated by Schmitt, a just medieval war need not necessarily be defensive
in nature, responding to an illegitimate attack; it can also take the form of an aggressive
war, which remains legitimate as long as the underlying reasons are acknowledged as
just.<fnref n="30" /> Nonetheless, this perspective on just war entails the concept of proportionality in
the initiation of conflict, which must adhere to specific criteria to claim a “justa causa”.
These criteria encompass aspects such as a reasonable interval between the declaration
of war and the commencement of hostilities, as well as a prior demand for restitution or
compensation, as expounded by Thomas of Aquinas in his *Summa Theologica*.<fnref n="31" />
Consequently, the righteousness of intention can only be affirmed if war is genuinely
considered the last recourse.

This marks the initial stage of objectifying the conditions for the legitimacy of
violence, employing criteria that enable the assessment of the rightness of the intentions
behind a war. While legitimate violence consistently adheres to a moral and theological

<footnote n="29">²⁹ Christian Braun, *Limited Force and the Fight for the Just War Tradition* (Washington, DC: Georgetown University Press, 2023), 111.</footnote>

<footnote n="30">³⁰ Schmitt, *The Nomos of the Earth*, 120.</footnote>

<footnote n="31">³¹ Anthony Lisska, “Natural Law and the Roman Catholic Tradition: The Importance of Philosophical Realism”, *American Journal of Economics and Sociology* 71/4 (2012): 745–786.</footnote>
worldview that revolves around the pursuit of the good, Thomist thought strives to rationalize the justification for waging war by establishing a framework of objective criteria to determine the fairness of a conflict.<fnref n="32" /> Nonetheless, this conception of just war primarily hinges on the intentions of those involved rather than solely on their actions. The material aspects of the processes leading to a conflict serve primarily as indicators that can be used to evaluate the soundness of these intentions, rather than as the sole criterion that would unequivocally determine the legitimacy of the conflict. This is evident, notably in the doctrine of double effect, which asserts that an agent is morally responsible only for the effects they directly intended, not for those that occur as unintended consequences.<fnref n="33" /> Consequently, intentionality emerges as the primary element defining a just war, while undesired outcomes do not necessarily imply moral responsibility.

Thomist thought represents an endeavor to rationalize the laws governing warfare by framing them within a framework of objective criteria that facilitate the assessment of the justness of its cause. Nevertheless, it remains a component of the broader concept of *justa causa*, which regards war as a moral phenomenon intrinsically linked to the intentions of its instigators. This perspective contributes to characterizing the adversary as a legitimate enemy to be confronted in the pursuit of the good. Critiques of the just war concept, which emerged from the late Middle Ages and the early Renaissance, ushered in a new system for regulating violence. This system no longer relies predominantly on the moral correctness of intentions but instead places emphasis on the adherence to a comprehensive body of legal procedures. This shift marks a departure from the predominantly moral conception of war towards a more legalistic paradigm.

## The construction of the modern state and the limitation of war

The concept of just war, predicated upon the righteousness of intentions, gradually encounters challenges with the emergence of new secular institutions that advocate a more legalistic and non-religious approach to warfare. Schmitt underscores the sociological dimension of this transformation, asserting that these shifts were not solely a consequence of conceptual

<footnote n="32">³² Alexis Heraclides and Ada Dialla, “The Origins of the Idea of Humanitarian Intervention: Just War and Against Tyranny”, *Humanitarian Intervention in the Long Nineteenth Century: Setting the Precedent*, eds. Alexia Heraclides and Ada Dialla (Manchester: Manchester University Press, 2015), 14–30.</footnote>

<footnote n="33">³³ William Fitzpatrick, “The Doctrine of Double Effect: Intention and Permissibility”, *Philosophy Compass* 7/3 (2012): 183–196.</footnote>
reconsiderations regarding the nature of war but were also deeply influenced by the political and societal changes that swept across Europe during the Renaissance. The establishment of a new European order and the evolution of a modern state marked by the emergence of a humanist intellectual elite raised the secularization of warfare. In this evolving paradigm, the legal procedures governing war began to assume greater significance than the moral justifications for conflict:

> Medieval theologians did not argue in a vacuum. They all belonged to an institutional order, and their words can be understood concretely only within that order. Beginning in the sixteenth century, however, jurists (now in the service of a government) carried questions of international Law further.<fnref n="34" />

A crucial element in Carl Schmitt’s analysis of the transition from the notion of just war to a more interstate approach to international law is the process of secularization within the realm of the laws of war. Schmitt identifies the key figures driving this process as predominantly legal scholars, including Bodin, Araya, and Gentilly. Even Grotius, whom Schmitt portrays as wavering in his concept of just war, is depicted as an author who primarily interprets war based on its formal attributes.<fnref n="35" /> Conversely, theologians such as Vitoria are regarded as still largely adhering to the medieval interpretation of just war, despite their critiques of this concept and their influential role in shaping modern international law.<fnref n="36" /> The emergence of a new social class comprising lay jurists posed a challenge to the authority of ecclesiastical institutions in defining the laws of war according to a higher moral order. This shift further bolstered the development of a law of nations conceived as an exclusive prerogative of sovereign states.

Carl Schmitt’s perspective seems conform with the conventional interpretation of the Renaissance as a period characterized by the expulsion of the sacred and providence from everyday life. However, Schmitt’s understanding of secularization differs in that he does not view it as the “reign of reason” and a history shaped solely by human agency. Instead, he places particular emphasis on the legalization of war and the emergence of new secular institutions advocating a legal and non-religious approach to warfare. Schmitt underscores the sociological dimension of this transformation, contending that these changes were not solely the product of abstract philosophical considerations about the nature of war. They were deeply

<footnote n="34">³⁴ Schmitt, *The Nomos of the Earth*, 126.</footnote>

<footnote n="35">³⁵ Schmitt, *The Nomos of the Earth*, 161.</footnote>

<footnote n="36">³⁶ Schmitt, *The Nomos of the Earth*, 121.</footnote>
intertwined with the political and societal developments that swept across Europe during the Renaissance. The legalization of war is intimately connected to the establishment of a novel European order and the development of new institutional structures. This transformation, facilitated by the ascent of a humanist elite, reshaped the questions surrounding war.

In this evolving paradigm, the significance of the juridical procedure surpassed that of the moral justifications for war.<fnref n="37" /> While this transformation contributed to the political and legal evolution of the institutional framework of the state, the theoretical reflections on the laws of war still retained roots in the principles of moral theology, particularly the concept of just war, which they played a role in secularizing. The outcome was a “hybrid” approach to war, one that continued to draw upon the moral framework of just war but shifted the focus of the discourse on the causes of war toward the territorial state and the decisions of sovereigns. This shift, in turn, played a pivotal role in the emergence of a new interstate political order.<fnref n="38" />

From this perspective, the Reformation assumes a major role in challenging the theological unity of Europe. The rupture within the medieval *Res Christiana* order precipitates a collapse of the prevailing socio-cultural structure that imbued the concept of just war with significance. This disruption contributes to the eruption of conflict seen across Europe during the Wars of Religion.<fnref n="39" /> According to Schmitt, a close connection exists between the concept of just war and civil war. He underscores the limitations of the prohibitions outlined in the Lateran Council and asserts that “[t]he connection between just war and total war is already totally there”.<fnref n="40" /> The emergence of the Wars of Religion in sixteenth-century Europe serves to consolidate Schmitt's interpretation of just war by demonstrating how the concept, when not constrained by the presence of a moral authority considered superior, can lead to the demonization of the adversary and culminate in the outbreak of total war aimed at the absolute annihilation of the enemy.<fnref n="41" />

The unity fostered by the medieval Res Christiana indeed played a role in preventing the emergence of civil war in Europe. However, with the dissolution of this theological order, a multitude of interfaith conflicts ensues. The Wars of Religion can thus be viewed as symptomatic of the transition from a theological order grounded in the concept of just war to a legal order predicated on conflicts between sovereign states. Consequently, the Reformation

<footnote n="37">³⁷ Schmitt, *The Nomos of the Earth*, 126.</footnote>

<footnote n="38">³⁸ Albert Salomon, “Hugo Grotius and the Social Sciences”, *Political Science Quarterly*, 62/1 (1947), 62–81.</footnote>

<footnote n="39">³⁹ Graham Maddox, “The Secular Reformation and the Influence of Machiavelli”, *The Journal of Religion*, 82/4 (2002), 539–562.</footnote>

<footnote n="40">⁴⁰ Schmitt, *The Nomos of the Earth*, 140.</footnote>

<footnote n="41">⁴¹ Monique Weis, “Between Holy War and Just War: Religious Arguments and the Legitimization of War in the Second Half of the Sixteenth and Early Seventeenth Centuries”, in *Theologies of War*, edited by Jean-Philippe Schreiber, (Brussels: Éditions De L’Université De Bruxelles, 2006), 19–28.</footnote>
can be seen as both an internal event that challenges the structures of the internal order and an
event that, through its repercussions, signifies a transition to a new legal order capable of
averting civil war and the inclination toward mutual destruction that it entails. The
questioning of the shared framework imposed by the authority of the Church necessitates the
establishment of a geopolitical order founded on the mutual recognition of others as
independent and sovereign states. This transformation involves moving away from the notion
of an *unjust enemy* towards that of an adversary with whom one can engage in a relationship
of equals.<fnref n="42" />

The development of an interstate structure within international law gradually unfolds,
marked by the rise of the sovereign state model, the flourishing of humanist culture, and the
challenges to Church unity precipitated by the Reformation. The modern form of the laws of
war, however, materialized relatively late, notably after the conclusion of the Thirty Years'
War and the establishment of a new international order through the Treaty of Westphalia in
1648.<fnref n="43" /> Carl Schmitt, drawing upon the ideas of philosophers like Hegel and Kant, as well as
the insights of twentieth-century historians like Edwin Dewitt Dickinson, connects the process
of constructing the modern state with the establishment of an international legal order aimed
at organizing and delimiting warfare.<fnref n="44" /> This transformation is characterized by the emergence
of the sovereign state model and an endeavor to move beyond civil wars. It engenders a
process of secularization that entails the abandonment of the medieval concept of warfare
justified by the righteousness of its causes. In its place, a system of interstate legal structures
is established, where the legitimacy of war hinges solely on the procedural aspects of conflict:

> In a certain sense, European soil became the theater of war (*theatrum belli*), the enclosed space in which politically authorized and militarily organized states could test their strength against one another under the watchful eyes of all European sovereigns.<fnref n="45" />

In this context, war can assume the form that Clausewitz would later theorize: a duel between
two sovereign states considered equals in rights and sovereignty.<fnref n="46" /> From this perspective,
armed conflict appears to be the continuation of national policy, supplanting diplomacy to
resolve geopolitical tensions arising from territorial disputes among European states. As

<footnote n="42">⁴² Melvin Endy, “Francisco De Vitoria and Francisco Suárez on Religious Authority and Cause for Justified War: The Centrality of Religious War in the Christian Just War Tradition”, *The Journal of Religious Ethics* 46/2 (2018): 289–331.</footnote>

<footnote n="43">⁴³ Leo Gross, “The Peace of Westphalia, 1648–1948”, *American Journal of International Law* 42/1 (1948): 28.</footnote>

<footnote n="44">⁴⁴ Schmitt, *The Nomos of the Earth*, 147.</footnote>

<footnote n="45">⁴⁵ Schmitt, *The Nomos of the Earth*, 143.</footnote>

<footnote n="46">⁴⁶ Carl von Clausewitz, *On War* (London: Everyman’s Library, 1993), 83.</footnote>
Schmitt observes, the spatial-political order that began to take shape in the seventeenth century did not eliminate war but rather confined it within a legal framework that regulated its conduct. War, in this framework, serves the same objectives as political action by orchestrating confrontations between competing powers. Schmitt opposes the notion of an enemy as a criminal. In contrast to the concept of criminality, his conception of an enemy acknowledges the other as a full member of the legal-political order, of which they constitute a legitimate element despite the opposition that has arisen during the conflict.

Schmitt characterizes this progression as a “rationalization and humanization of war”, by opposition to “the brutality” of religious and colonial wars.<fnref n="47" /> He contends that it is not feasible to eliminate the use of violence. Schmitt approaches the concept of law through the lens of land annexation. This connection to the land serves to delimit and structure the political order within a specific territory, but it also encourages thinking about politics in terms of territorial expansion. Consequently, law cannot eradicate violence entirely but can only prevent its degeneration into a war of absolute annihilation. The international legal order seeks to regulate conflicts by affording each state the opportunity to preserve its existence through the maintenance of its own territorial expansion process, all while framing this process in a manner that mitigates the emergence of total war, in which expansion would take on the character of exterminating the other.<fnref n="48" />

Much like the medieval *Res Christiana*, the primary objective of modern international law is to confine warfare within a system designed to define the conditions under which it may occur. However, in contrast to the medieval order, modern law is conceived as an internal mechanism within Europe, focused on regulating relations among disparate states rather than preserving their unity. Consequently, the regulation of war by the modern legal order takes on the character of peer judgment, signifying a departure from the paradigm of just war. In this modern framework, the legitimacy of war is no longer determined by its inherent nature but by the reciprocal recognition among states. This mutual acknowledgment of sovereign states presupposes certain limitations on their authority beyond their borders, the exclusion of individuals who lack the protections of the laws of war, and the existence of formal equality among these states. The European legal order, therefore, relies on the maintenance of a geopolitical balance among the great powers to prevent any single European power from attaining a hegemonic position over others.<fnref n="49" />

<footnote n="47">⁴⁷ Schmitt, *The Nomos of the Earth*, 143.</footnote>

<footnote n="48">⁴⁸ Schmitt, *The Nomos of the Earth*, 187.</footnote>

<footnote n="49">⁴⁹ Schmitt, *The Nomos of the Earth*, 160.</footnote>
Most of the internal conflicts within Europe during the eighteenth and nineteenth centuries were framed within the context of an international equilibrium. This equilibrium aimed to prevent the rise of an intra-European superpower capable of establishing itself territorially and politically as the sole dominant force. Even the notable exception of the wars stemming from the French Revolution and Empire, which were portrayed as 'just wars' within the framework of a secularized eschatology of universal progress and rights, and a sacred struggle against tyranny,<fnref n="50" /> can be interpreted as a moment of spatial reorganization of the European order, especially in the French colonial sphere.<fnref n="51" /> The pursuit of a European balance does not imply the absence of great European powers capable of exerting influence over lesser states, nor does it preclude territorial conquests within the European sphere. Like Montesquieu's theory of the separation of powers, the European balance operates on the principle that power counters power, with major powers neutralizing each other in a dynamic approach, rather than seeking to maintain an immutable status quo. New great powers could emerge on the international stage, as exemplified by the ascendancy of England in the eighteenth century and the unification of Germany at the end of the nineteenth century.<fnref n="52" /> Conversely, some states could experience a decline in their standing within the European geopolitical order, as seen with Spain and Denmark, once major powers in the seventeenth century, but relegated to middle or even minor powers during the nineteenth century.

In a similar vein, territorial expansion remains a central element in the political dynamics of modern Europe. For instance, Russia's annexation of Finland following a conflict with Sweden in 1808, as well as the unification processes of Italy and Germany during the nineteenth century, are fundamentally military endeavors. However, these various conquests are part of a spatial order aimed at constraining territorial expansion. The participation of France and England in the Crimean War in 1853 is primarily motivated by their shared desire to curtail Russia's territorial expansion, especially in the face of the waning Ottoman Empire. Despite the historical perception of the Ottoman Empire as an adversary of Christianity, it had come to be seen as a pivotal element in the new European equilibrium.<fnref n="53" />

As Schmitt succinctly puts it “The European state system – a spatial order of territorial powers on European soil – thereby had found its firm structure”.<fnref n="54" /> The European spatial order

<footnote n="50">⁵⁰ Timothy James Clark, “Painting in the Year Two”, *Representations* 47 (1994): 13–63.</footnote>

<footnote n="51">⁵¹ Damien Tricoire, “The French Revolution as a Period of Territorialization of the Colonial Empire? A Southern Indian Ocean Perspective”, in *The French Revolution as a Moment of Respatialization*, edited by Megan Maruschke and Matthias Middell, (Berlin: De Gruyter Oldenbourg, 2019), 47–64.</footnote>

<footnote n="52">⁵², Stacie Goddard, “When Right Makes Might: How Prussia Overturned the European Balance of Power”, *International Security* 33/3 (2009): 110–142.</footnote>

<footnote n="53">⁵³ Candan Badem, *The Ottoman Crimean War (1853–1856)* (Boston: Brill, 2010), 46.</footnote>

<footnote n="54">⁵⁴ Schmitt, *The Nomos of the Earth*, 166.</footnote>
thus allowed for the preservation of a bellicose dynamic among the recognized members of
this legal-political order, while simultaneously limiting their territorial ambitions to prevent
the emergence of a hegemonic superpower within Europe. This organization, grounded in the
mutual recognition of states as full members of the international community, nonetheless
excludes other entities that are not regarded as full sovereign states. While this system serves
to rationalize war by excluding individuals with private legal status, it does not account for
other political entities, such as peoples or community institutions that may exist outside the
framework of the modern state. Schmitt cites the example of the Kingdom of Poland, which,
not being organized as a sovereign state but rather as a feudal one, could legitimately be
dissolved and have its territory divided among three stronger states at the end of the
eighteenth century.<fnref n="55" />

Schmitt's description of Jus Publicum Europeanum reveals an exceedingly formal
spatial structure based on the mutual recognition of state authority as legally normalized
public entities, to the exclusion of all other political and social realities within the realm of the
law of war. This legal formalism, paradoxically, brings Schmitt closer to the positivism of
Kelsen, despite being one of its main critics. It also distances him from the National Socialist
doctrine, which viewed the state as a limit (to be overcome) to the expansion of the German
race's biological movement. This legal formalism plays a crucial role in enabling territorial
expansion beyond the boundaries of Europe. Non-European territories, not considered
sovereign states in the formal sense of modern law, became essentially lawless lands open to
colonial conquest. By excluding actors that were not recognized as fully sovereign states, the
principles of modern war law contributed to moving away from the just war paradigm to
regulate conflicts and confine territorial conquests within the European sphere.
Simultaneously, it facilitated the colonization of non-European territories, ultimately leading
to an insatiable quest for territorial expansion.

The colonial sphere: An unregulated space

Colonization plays an important role in Carl Schmitt's analysis of the evolution of the law of
war and the establishment of the modern state. While the Reformation is considered the
foundational event in the emergence of modern law, pulling Europe out of the paradigm of
just war and leading to the legitimization of conflicts as an exclusive prerogative of the state,
this transformation would not have been possible without the discovery of the Americas and

<footnote n="55">⁵⁵ Schmitt, *The Nomos of the Earth*, 166.</footnote>
the appearance of new territories that allowed for continued expansion beyond Europe. The *Jus Publicum Europaeum* is fundamentally built upon a division between the European space, governed by relations between states, and the extra-European space, perceived as open to conquest and devoid of public law. The presence of vast, seemingly untouched lands ready for colonization due to the absence of sovereign states is a critical element in the development of modern war law. This factor allowed for the continuation of expansionist dynamics while constraining them within the confines of the European sphere:

> This spatial order and its concept of balance is the essential presupposition and foundation upon which the European Great Powers based their practical policy of colonial expansion into the free spaces of the globe from the seventeen to the nineteen centuries.<fnref n="56" />

The fortuitous discovery of the Americas and the devastating impact of infectious diseases introduced by Europeans on native populations allowed the major European powers to lay claim to vast territories. They could expand their dominions without disrupting the status quo within the confines of the European continent.<fnref n="57" /> For Schmitt, the limitations of international law and its core annexationist dynamics, which he considers central to political construction, were counterbalanced by the presence of an expansive frontier open to European states. The emergence of the New World, profoundly altered by epidemics and appearing untouched in the eyes of colonizers, played a pivotal role in shaping modern law within the confines of the Old World.<fnref n="58" />

Carl Schmitt views the discovery of America as an event that ensured the continuity of the dynamics of conquest. The construction of modern law served to maintain a geopolitical equilibrium within Europe, preventing the emergence of empires with absolute dominion over the entire European continent. This legal framework also kept European states engaged in a perpetual state of conflict, allowing them to extend their ambitions beyond the realm of *Jus Publicum*. The discovery of America also had broader implications for Europe's relationship with the rest of the world. It helped shape a common European identity that transcended the confines of Christianity and contributed to the development of a “common spatial order

<footnote n="56">⁵⁶ Schmitt, *The Nomos of the Earth*, 161.</footnote>

<footnote n="57">⁵⁷ Alexander Koch, Chris Brierley, Mark Maslin and Simon Lewis, “Earth System Impacts of the European Arrival and Great Dying in the Americas after 1492”, *Quaternary Science Reviews* 207 (2019): 13–36.</footnote>

<footnote n="58">⁵⁸ Nathan Probasco, “Virgin America for Barren England: English Colonial History and Literature, 1575–1635”, *Literature Compass* 9/6 (2012): 406–419.</footnote>
encompassing the whole earth”.<fnref n="59" /> Schmitt interprets this phenomenon primarily as a legal process, and he asserts that its abandonment after the First World World War led to the collapse of the entire European structure.

In this context, Schmitt defends the legitimacy of the colonial process, portraying it as a vital instrument that facilitated the evolution of modern law and contributed to the development of European identity and international order.<fnref n="60" /> His justification for the colonial process is rooted in the distinction between land and sea. Unlike land, the sea is seen as a domain without inherent rights and impossible to demarcate. However, through the process of expansion, the newly discovered territories beyond the natural boundary of the Atlantic Ocean came to be considered part of “overseas” spaces, which were freely open to occupation by European powers. This assimilation is evident in the partitioning of the world, which, starting from the late fifteenth century, was aimed at allocating the expanses available for colonization among the European states:

> A closer juridical consideration of amity lines in the sixteen and seventeen centuries reveals two types of "open" spaces in which the activity of European nations proceeded unrestrained: first, an immeasurable space of free land – the New World, America, the land of freedom, i.e., land free for appropriation by Europeans – where the "old" Law is not in force; and second, the free sea – the newly discovered oceans conceived by the French, Dutch, and English to be a realm of freedom.<fnref n="61" />

The New World's territory, largely unexplored during the early colonial conquests, was assimilated into the maritime space where no governing authority could exert control. As a result, the American continent was excluded from the interstate relations that were concurrently shaping modern public law. It was viewed as a free space where Western nations could act as they saw fit to appropriate land, in contrast to the European sphere where the *Jus Publicum Europeanum* legally regulated the process of territorial conquest. This dichotomy between the metropolitan space and colonial space emerged from the initial discoveries and continued to shape modern law until the twentieth century. Examples of this divide include the existence of colonial laws that were often more restrictive than metropolitan laws, such as the "Indigenous Code" in French Algeria.<fnref n="62" /> Additionally, the persistence of slavery in the

<footnote n="59">⁵⁹ Schmitt, *The Nomos of the Earth*, 55.</footnote>

<footnote n="60">⁶⁰ Andreas Kalyvas, “Carl Schmitt’s Postcolonial Imagination”, *Constellations* 25/1 (2018): 35–53.</footnote>

<footnote n="61">⁶¹ Schmitt, *The Nomos of the Earth*, 94.</footnote>

<footnote n="62">⁶² Olivier Le Cour Grandmaison, *De l’indigénat: Anatomie d’un monstre juridique* (Paris: La Découverte, 2015), 62.</footnote>
colonies, even after its abolition in the metropolises, and the existence of distinct legal statuses for native populations underscored the legal and social disparities between European territories and their colonial empires.<fnref n="63" />

Schmitt presents two arguments to justify the free character of overseas territories: a legal argument and a historical one. The legal argument is based on the assertion that the American continent had no state of its own and, therefore, could not be integrated into the European legal order based on interstate relations. According to Schmitt, “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*”.<fnref n="64" /> This argument finds support in the works of jurists like Grotius and Pufendorf, but Schmitt acknowledges that it is a somewhat arbitrary assertion, considering the state as a legal order specific to European powers: “With this thesis, seventeen and eighteen century jurists assumed that the New World is open only to European states”.<fnref n="64" /> Grotius, for instance, developed the theory of eminent domain in his work *On the Law of War and Peace*, which excluded non-European states from the legal framework for land appropriation on the grounds that they did not possess a delegation of sovereignty. Similarly, theorists of the state of nature like Locke and Pufendorf justified land appropriation in colonial contexts.<fnref n="65" />

Gopal Balakrishnan further underlines the juxtaposition between European and non-European spheres within Carl Schmitt's framework of modern law. Balakrishnan places special emphasis on the crucial role of legal acknowledgment of "the other" in internal conflicts within European states, while highlighting its conspicuous absence in the context of their overseas expansion. As a result, it becomes manifest that the European spatial order is fundamentally grounded in a legal demarcation between a confined continental domain, comprised of mutually recognized peers, and an expansive extra-European realm where indigenous populations are systematically denied the status of sovereign states:

> These oppositions expressed an ongoing world-historical expropriation of non-European peoples and territories, and — again in an unmistakable allusion to the contemporary war — Schmitt pointed out that none of the colonial powers of that time had recognized the rights of the original inhabitants of the lands they seized. Despite the brutal wars fought

<footnote n="63">⁶³ Clement Ng'ong'ola, “The State, Settlers, and Indigenes in the Evolution of Land Law and Policy in Colonial Malawi”, *The International Journal of African Historical Studies* 23/1 (1990): 27–58.</footnote>

<footnote n="64">⁶⁴ Schmitt, *The Nomos of the Earth*, 130.</footnote>

<footnote n="65">⁶⁵ Robert Nichols, *Theft Is Property!: Dispossession and Critical Theory* (New York: Duke University Press, 2020), 16–51.</footnote>
between European states, by civilized convention they were understood to form a collectivity, even a family, of nations.<fnref n="66" />

The European legal arguments that justified the free character of overseas territories, particularly in the context of colonization, were primarily concerned with serving the interests of European colonial powers rather than establishing a universal standard for recognizing political communities as sovereign states. According to these arguments, any non-European political system, regardless of its level of legal and social organization, was deemed incapable of becoming a state. This perspective essentially treated the status of non-European territories as a matter of formal judgment, rather than a comprehensive examination of the nature of political systems in those regions. As Carl Schmitt points out, “The crucial point is that [the jurists] no longer [treat the colonial conquest] as a question pertaining to Europe as a whole. They answered it in terms of the struggle among individual European powers vying for land-appropriations”.<fnref n="67" /> The primary goal of these legal arguments was to prevent tensions and conflicts among European colonizing countries, thus averting intra-European conflicts, while still allowing for territorial expansion outside the European sphere. This approach highlights how the legal justifications for colonization were shaped by the interests and power struggles of the colonizing states themselves.

Moreover, it is significant to note that the deportation of the Cherokees in 1838 occurred after the recognition of the Cherokee nation as an independent state with its own constitution.<fnref n="68" /> Similarly, the numerous unequal treaties concluded between European powers and Asian states, which laid the foundation for the colonization of Southeast Asia during the nineteenth century, demonstrate that the prior existence of a sovereign state in the colonized territory never stopped Western colonizers.<fnref n="69" /> While the concept of the New World as a region lacking statehood and devoid of rights may have played a role during the era of great discoveries and the outset of colonial endeavors, the latter swiftly departed from this initial paradigm in pursuit of a policy of conquest.<fnref n="70" />

The second argument employed by Schmitt is both political and historical in nature. It seeks to rationalize colonial conquest by drawing on the phenomenon of European

<footnote n="66">⁶⁶ Gopal Balakrishnan, *The Enemy: An Intellectual Portrait of Carl Schmitt* (London: Verso, 2000), 243.</footnote>

<footnote n="67">⁶⁷ Schmitt, *The Nomos of the Earth*, 130.</footnote>

<footnote n="68">⁶⁸ Bethany Schneider, “Boudinot’s Change: Boudinot, Emerson, and Ross on Cherokee Removal”, *ELH* 75/1 (2008): 151–177.</footnote>

<footnote n="69">⁶⁹ Dong Wang, “Between Tribute and Unequal Treaties: How China Saw the Sea World in the Early Nineteenth Century”, *History* 103 (2018), 262–285.</footnote>

<footnote n="70">⁷⁰ Ntina Tzouvala, *Capitalism as Civilisation: A History of International Law*, edited by Ntina Tzouvala, (Cambridge: Cambridge University Press, 2020), 44–87.</footnote>
exploration and its associated intellectual superiority. This argument transcends a mere
hypothetical assertion, where the American continent is considered a state-free area solely
because European jurists have deemed it so. Instead, it delves into an analysis of the historical
factors that contributed to the rise of imperialism. Schmitt underscores the pivotal role played
by these explorations. In this context, the discovery of hitherto unknown territories serves as
the rationale for territorial annexation, rather than the presence or absence of states
characterized by a specific set of formal attributes within these uncharted lands. Therefore, it
is the political impetus driven by discovery itself that justifies the right to conquer these
territories, rather than the legal groundwork that facilitates the policies of discovery and
colonization.

This argument sheds light on the underlying rationale of Carl Schmitt's standpoint, as
colonial conquest serves as the bedrock of the legal framework. This contrasts with Kelsen's
normative approach, wherein the law exists prior to political action.<fnref n="71" /> In this perspective, the
act of discovery emerges as the foundational moment, preceding any legal structuring. It also
implies a distinct dichotomy between the discoverer and the discovered: “This is so because
the meaning of the legal title "discovery" lay in an appeal to the historically higher position of
the discoverer vis-à-vis the discovered”.<fnref n="72" /> Consequently, discovery establishes a connection
between peoples who previously had no interactions, rendering them incapable of fitting into
any pre-existing legal or political network of historical relations. The unique status of the New
World as a space open to conquest and colonization since the late fifteenth century arises from
its absence in the political and legal constructs of the Western world. In contrast to the
diplomatic embassies sent during the fourteenth century to forge alliances with the Mongols,
the Spanish conquest of Mexico and Peru marked the initial point of contact between the
involved populations.<fnref n="73" /> Discovery placed these peoples in a virtually untouched relationship,
devoid of prior interactions that could have established a political or legal precedent for
connections between these populations, whether amicable or hostile.<fnref n="74" />

This relationship is inherently unequal. The discoverer is actively engaged in a process
of research and exploration, and while they may stumble upon their discovery by pure chance,
as exemplified by Christopher Columbus's accidental encounter with America, their discovery

<footnote n="71">⁷¹ Pedro Magalhães, *The Legitimacy of Modern Democracy: A Study on the Political Thought of Max Weber, Carl Schmitt and Hans Kelsen* (Milton: Routledge Innovations in Political Theory, 2021), 120–125.</footnote>

<footnote n="72">⁷² Schmitt, *The Nomos of the Earth*, 131.</footnote>

<footnote n="73">⁷³ Paul Demieville and Martin Faigel, “The First Philosophic Contacts Between Europe and China”, *Diogenes* 15/58 (1967): 75–103.</footnote>

<footnote n="74">⁷⁴ Federico Navarrete Linares, “Understanding the Conquest of Mexico from the 21st Century”, *Iberoamericana* 19/71 (2019): 7–12.</footnote>
still results from a deliberate and intended decision. Conversely, the discovered party finds
itself in a reactive position regarding a discovery process that it neither chose nor authorized
but rather undergoes. Although not all discoveries have led to military conquest, as evidenced
by expeditions led by figures like James Cook or Jean-François de La Pérouse, the discoverer
is the instigator of a new relationship, to which the discovered can only react.<fnref n="75" /> Thus, when
Spain and Portugal opted to follow their discoveries with colonization efforts, states like the
Inca Empire never had the opportunity to venture overseas because they were never in a
position to explore new territories beyond their established sphere of influence:

> It is completely false to claim that, just as the Spaniards had discovered the Aztecs and the Incas, so the latter could have discovered Europe. The Indians lacked the scientific power of Christian-European rationality. It is a ludicrous anachronism to suggest that they could have made cartographical surveys of Europe as accurate as those Europeans made of America.<fnref n="76" />

Schmitt, thus, rationalizes colonial conquest by invoking the discovery of America and the unprecedented nature of the relationship it established with the peoples of the American continent, stemming from the absence of any preexisting legal or political connections and the European initiative. Beyond this argument, a historical and moral dimension is also considered. According to Schmitt, the West's technological and intellectual superiority over the rest of the world justifies colonization. This argument extends beyond mere technological prowess and incorporates the notion of the West's moral supremacy, portraying Western societies as the sole bearers of rationality. In Carl Schmitt's view, only the West possessed the moral fortitude to undertake global conquest.

Nevertheless, his distinction between institutionalized European states and non-Western territories regarded as susceptible to colonization is not predicated on biological or racial distinctions. As Mehring elucidates, “Schmitt never openly interpreted the "blood" of the *Volksgeist* in biological terms”.<fnref n="77" /> His notion of *Großraum* primarily revolves around spatial considerations and hinges on the relationship between land and territory as a foundation for the institutionalization of the State. Consequently, the legal framework is rooted in the establishment of a central, cohesive entity situated within a specific geographical

<footnote n="75">⁷⁵ Jean Fornasiero and John West-Sooby, “The Acquisitive Eye? French Observations in the Pacific from Bougainville to Baudin”, *Discovery and Empire*, edited by John West-Sooby, (Adelaide: University of Adelaide Press, 2013), 69–98.</footnote>

<footnote n="76">⁷⁶ Schmitt, *The Nomos of the Earth*, 132.</footnote>

<footnote n="77">⁷⁷ Mehring, Reinhard, *Carl Schmitt’s European Jurisprudence* (Baden-Baden: Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, 2022), 75.</footnote>
region. It's important to note, however, that the absence of a biological dimension in his concept of political unity does not imply the absence of racism or anti-Semitism in Carl Schmitt's work. Instead, as Mehring points out, Schmitt's anti-Semitism is primarily expressed through the lens of his dichotomy between friend and foe.⁷⁷

Carl Schmitt's spatial perspective on jurisprudence affords him a degree of conceptual adaptability, enabling him to disentangle his ideology from its anti-Semitic connotations following the Second World War and the fall of Germany: "Schmitt's late work, as we find in *The Nomos of the Earth*, starts out from the notions of 'space' or 'soil' and delineates law as a 'unity of order and location'".⁷⁷ Nonetheless, this framework retains a conservative and imperialistic worldview pertaining to the dichotomy between Western and non-Western entities, underpinned by the conviction of Western superiority, based not on biological superiority but on the certainty of a historical destiny.

Schmitt departs from his typical political decisionism and grounds his justification for colonialism in an intrinsic characteristic of European states, stemming from a historically determined evolution. Furthermore, he draws on the authority of Hegelian philosophy of history to support his stance on non-European states. Referencing Bruno Bauer directly, Schmitt argues that the discovery of America and colonization were not products of deliberate choices or political will but rather were dictated by the inexorable march of history and the moral superiority of the West.<fnref n="78" /> In a post-war world undergoing decolonization, a movement criticized by thinkers such as Sartre and Fanon, Schmitt assumes an unmistakably conservative position. He portrays colonial imperialism as a safeguard for the stability of the *Jus Publicum Europeanum*, using it to preserve the world of the past in the face of new developments in the contemporary world, notably the emergence of the American and Soviet blocs.<fnref n="79" />

## Colonial war as total war

Schmitt delineates the development of modern European law through a dual mechanism. Firstly, within the confines of Europe, the evolution of the modern state and the establishment of war as an exclusive prerogative of sovereign entities result in a constraint on conflicts and territorial acquisition. War takes on a formal nature and becomes confined to interstate disputes that hinge on mutual recognition among sovereign states. Secondly, outside the

<footnote n="78">⁷⁸ Schmitt, *The Nomos of the Earth*, 132.</footnote>

<footnote n="79">⁷⁹ Seyla Benhabib, “Carl Schmitt’s Critique of Kant: Sovereignty and International Law”, *Political Theory* 40/6 (2012): 688–713.</footnote>
European realm, the discovery of America initiates a process of territorial expansion. These newly encountered regions on the American continent, not regarded as fully sovereign states, become focal points for an expansive policy of colonial conquest by European powers. This engenders an outward shift of conflicts beyond the European sphere. In Schmitt's words, “the appearance of vast free spaces and the land-appropriation of a new world made possible a new European international law among states”.<fnref n="80" /> The colonization of the Americas sustains a drive for territorial conquest at a juncture when such ambitions are diminishing within European borders due to the maturation of the modern state.

This dynamic of conquest initially confines itself to American soil. Europe's presence in other continents, such as Africa or Asia, initially revolves around trading posts situated near the coast, primarily to oversee the African slave trade. These endeavors did not initially evolve into full-fledged colonial conquests. The case of Portugal's colonization of Mozambique serves as a particularly illuminating example. Despite their arrival on the East African coasts in 1498, the Portuguese did not achieve complete dominion over this territory until the late nineteenth century.<fnref n="81" /> Nonetheless, the spatial dynamics elucidated by Schmitt entail the persistence of territorial conquest as a driving force in political life. The resolution of conflicts within the European sphere depended on the expansion into overseas territories. Similarly, securing the supply of raw materials from the colonies remained vital for ensuring the economic prosperity of European states. This ranged from the silver mines of Bolivia in the sixteenth century<fnref n="82" /> to the sugar and Caribbean spice trades in the seventeenth and eighteenth centuries,<fnref n="83" /> the production of indigo and Indian opium in the eighteenth and nineteenth centuries,<fnref n="84" /> and the acquisition of phosphate and rubber resources in the twentieth century.<fnref n="85" />

The pursuit of colonial enterprises stands as a crucial matter for European powers, bearing significant political and economic implications. The closure of “untouched” regions available for colonial conquest, occasioned by the independence of American states between the late eighteenth century and the early nineteenth century, created a pressing need to identify new territories to sustain the expansionary process. Examples of this quest for new spaces to

<footnote n="80">⁸⁰ Schmitt, *The Nomos of the Earth*, 140.</footnote>

<footnote n="81">⁸¹ Éric Allina, *Slavery by Any Other Name: African Life under Company Rule in Colonial Mozambique* (Charlottesville, University of Virginia Press, 2012), 17–45.</footnote>

<footnote n="82">⁸² Florian Téreygeol and Pablo Cruz, “The Potosi Silver Mine: Technique at the Centre of a Power Struggle between the Incas and the Spaniards (16th–17th Centuries)”, *Patrimoines du Sud* 13 (2021), 1–32</footnote>

<footnote n="83">⁸³ Dale W. Tomich, *Slavery in the Circuit of Sugar, Second Edition: Martinique and the World–Economy, 1830–1848* (New York: State University of New York Press, 2016), 51–76.</footnote>

<footnote n="84">⁸⁴ Tirthankar Roy, “Indigo and Law in Colonial India”, *The Economic History Review* 64 (2011): 60–75.</footnote>

<footnote n="85">⁸⁵ Benjamin Rubbers, “The Story of a Tragedy: How People in Haut–Katanga Interpret the Post-colonial History of Congo”, *The Journal of Modern African Studies* 47/2 (2009): 267–289.</footnote>
conquer are the colonization of India from 1757 to 1858 and the colonization of Algeria from
1830 to 1870. This drive reached its zenith during the Scramble for Africa that ensued after
the Berlin Conference in 1885. This period of heightened conquest is further underscored by
the emergence of new European powers seeking their own colonial dominions, such as Italy
and Germany.<fnref n="86" /> Schmitt also regards this era as the “[t]he last common land-appropriation of
non-European soil by the European powers” and “the last great act of a common European
international law” before the dissolution of *Jus Publicum Europeanum* following the First
World War and the Treaty of Versailles.<fnref n="87" />

The paradigms that governed the conquest of America were subsequently extended to encompass the entire world. Hannah Arendt had already elucidated this process of applying the principles of colonial conquest in her analysis of imperialism.<fnref n="88" /> However, her interpretation, which distinguishes between colonization and imperialism, overlooks the pivotal role played by the colonization of America in shaping the colonial enterprise. According to Hannah Arendt, imperialism in the late nineteenth century was distinguished by its racial dimension, a phenomenon that emerged from interactions between whites and blacks during the colonization of South Africa by the Afrikaners.<fnref n="89" /> She posited that this racial aspect then diffused throughout the entire colonial system as a transfer effect from the African context to the rest of the world. In contrast, she argued that the colonization of America was relatively devoid of racism, or at the very least, racism did not constitute a comprehensive system of thought during that era, in contrast to the late nineteenth-century imperialism.<fnref n="90" />

While Arendt's approach is valuable in demonstrating how modern racism could
originate within the colonial sphere before spreading to the European context, it does not
adequately address the role played by the conquest of America in shaping colonial thought.
This is even though the phenomenon she describes was already present in the transatlantic
colonies from the seventeenth to the eighteenth centuries. Conversely, Schmitt's perspective
repositions the significance of the conquest of America in the development of the colonial
system, even as he defended the legitimacy of Western imperialism. He portrays the
colonization of Africa as a continuation of the expansionist movement that, from the sixteenth
century onward, contributed to the establishment of modern states founded on public law and

<footnote n="86">⁸⁶ Suaad Ighafal, “The German Scramble for Africa (1882–1909)”, in *A Bridgehead to Africa: German Interest in the Ottoman Province of Tripoli (Libya) 1884–1918*, edited by Leibniz-Zentrum Moderner Orient, (Berlin: De Gruyter, 2021), 73–112.</footnote>

<footnote n="87">⁸⁷ Schmitt, *The Nomos of the Earth*, 214.</footnote>

<footnote n="88">⁸⁸ Hannah Arendt, *The Origins of Totalitarianism* (New York: Meridian Books, 1962), 222.</footnote>

<footnote n="89">⁸⁹ Hannah Arendt, *The Origins of Totalitarianism*, 186.</footnote>

<footnote n="90">⁹⁰ Hannah Arendt, *The Origins of Totalitarianism*, 158.</footnote>
Europe's dominance over the rest of the world. According to Schmitt, the colonization of Africa does not mark the initiation of a new imperialist system, but rather represents the culmination of a centuries-long process of territorial expansion, with the State replacing “old forms of colonial acquisition by private colonial societies” to ensure the extension of conquest.<fnref n="91" />

The flaw in this analysis lies in its interpretation of the factors that contributed to the dissolution of the European spatial order in the twentieth century. According to Schmitt, the rise of the United States as a globalized and expansionist power in the late nineteenth century played a pivotal role in diminishing the significance of Europe and ultimately leading to the demise of the European spatial order.<fnref n="92" /> He traces this moment to the Roosevelt Corollary to the Monroe Doctrine, which transformed a previously neutral stance toward European affairs into one of expansionism.<fnref n="93" /> In doing so, Schmitt assigns a dominant role to the United States in the marginalization of European states during the twentieth century.

However, the dismantling of the European spatial order appears to be more a consequence of the culmination of colonial processes and their dwindling efficacy than a result of the emergence of new powers on the global stage. The relentless expansion of European powers at the close of the nineteenth century raised doubts about the viability of further territorial conquest due to the scarcity of unclaimed lands. Unlike Lenin, who highlights the contradictions inherent in colonial conquest and identifies it as a driving force behind the disintegration of the European social order in *Imperialism, the Highest Stage of Capitalism*, Carl Schmitt avoids acknowledging the tension inherent in a system built on territorial expansion in a world without untapped frontiers.<fnref n="94" /> Similarly, Schmitt does not concern himself with the economic and social costs of colonization; his focus is solely on the legal and political aspects of land acquisition. This stance neglects the significant socioeconomic inequalities that were prevalent at the beginning of the twentieth century, as previously highlighted by Hobson in 1902 in *Imperialism* or more recently by Thomas Piketty. These inequalities played a substantial role in the eruption of intra-European conflicts.<fnref n="95" />

<footnote n="91">⁹¹ Schmitt, *The Nomos of the Earth*, 215.</footnote>

<footnote n="92">⁹² Schmitt, *The Nomos of the Earth*, 225.</footnote>

<footnote n="93">⁹³ Kris Mitchener and Marc Weidenmier, “Empire, Public Goods, and the Roosevelt Corollary”, *The Journal of Economic History* 65/3 (2005): 658–692.</footnote>

<footnote n="94">⁹⁴ Vladimir Lenin, *Imperialism, the Highest Stage of Capitalism: A Popular Outline* (New York: International Publishers, 1939).</footnote>

<footnote n="95">⁹⁵ Thomas Piketty, *Capital and ideology* (Cambridge, MA.: Harvard University Press, 2020), 490.</footnote>
Schmitt regarded the presence of “the appearance of huge free spaces” as a fundamental aspect in the development of modern law.<fnref n="96" /> Nevertheless, by the early twentieth century, these expanses had vanished. In the early sixteenth century, the vast lands awaiting discovery had offered a means of curtailing territorial conquests within Europe while enabling their continuation in the New World. However, by the dawn of the twentieth century, only a handful of nations remained beyond European dominance. Despite some military setbacks, such as the Ethiopian victory at Adwa in 1885, which preserved its sovereignty, and Japan's rise as a new economic and military power outside Europe, most of the non-European world was composed either of direct colonies or former colonies, like the South American nations that had achieved independence during the nineteenth century.<fnref n="97" /> The “Scramble for Africa” represented the final chapter in European territorial expansion as it was the last unclaimed land. The early twentieth century marked the zenith of European supremacy over the rest of the world. Nonetheless, despite the dwindling opportunities for territorial expansion, it remained the driving force behind the European economy and political integration.<fnref n="98" />

Furthermore, the emergence of new non-European actors like the United States and Japan in the colonial enterprise exacerbated the scarcity of available land. While it's not an attempt to oversimplify the causes of the 1914-1918 war, it's important to recognize that the colonial question played a significant role in its onset. French and British influence constrained Germany's colonial expansion, particularly in the Transvaal and East Africa, where German territories were surrounded by British colonies.<fnref n="99" /> While these colonial rivalries alone may not fully explain the outbreak of war, they underscored the tensions within the European sphere as the opportunities for extra-European conquest diminished. Similarly, the Balkan wars of 1912 and 1913 revealed territorial disputes within the European spatial order, driven by recently independent powers like Bulgaria that sought to expand within the European space. Additionally, as Christopher Clark demonstrates, colonial rivalries between major powers, particularly in Africa and the Balkans concerning the Ottoman question, were significant contributing factors to the outbreak of the First World War.<fnref n="100" />

<footnote n="96">⁹⁶ Schmitt, *The Nomos of the Earth*, 141.</footnote>

<footnote n="97">⁹⁷ Raymond Jonas, *The Battle of Adwa: African Victory in the Age of Empire*" (Cambridge: Belknap Press of Harvard University Press, 2011), 285–301.</footnote>

<footnote n="98">⁹⁸ Peter Cain and Antony Gerald Hopkins, *British Imperialism: Innovation and Expansion 1688–1914* (London, New York: Longman, 1993), 456–465.</footnote>

<footnote n="99">⁹⁹ Volker Rolf Berghahn, “German Colonialism and Imperialism from Bismarck to Hitler”, *German Studies Review* 40/1 (2017): 147–162.</footnote>

<footnote n="100">¹⁰⁰ Christopher Clark, *The Sleepwalkers: How Europe Went to War in 1914* (London: Harpers Collins, 2013), 99–100.</footnote>
Schmitt's perspective, which attributes the primary responsibility for the disintegration of the European spatial order to the United States, appears to be lacking. The root causes of this collapse seem to be inherent to the geopolitical dynamics of early twentieth-century Europe, stemming from a system that could no longer effectively manage its internal tensions. Schmitt's defense of imperialism as a driving force in the construction of the *Jus Publicum Europeanum* overlooks how colonial expansion might have contributed to the breakdown of European order and the resurgence of total warfare on European soil. He tends to place the blame on the United States as the main culprit for the calamities of the twentieth century, while sparing Germany, which was a significant actor in this process. Conversely, by critiquing imperialism and identifying it as one of the factors behind the rise of totalitarianism, Hannah Arendt demonstrates how the principles of colonization could rebound to Europe in a “boomerang effect,” ultimately leading to the resurgence of total warfare on European soil.

Hannah Arendt's perspective associates totalitarianism closely with imperialism. She argues that the mechanisms of totalitarianism did not exclusively develop within Europe but emerged in the context of Europe's expansionist endeavors beyond its historical boundaries.<fnref n="101" /> According to her analysis, elements of racist culture and bureaucratic governance initially evolved in colonial settings before disseminating across the European sphere. These principles particularly thrived in countries that already had authoritarian bureaucracies characterized by a “pseudo-mystical aura”, such as Austria and Russia.<fnref n="102" /> Arendt's theory is valuable in explaining how an ideology not originally rooted in Western thought could originate outside the European sphere through colonial imperialism and later become assimilated into metropolitan culture, eventually flourishing within totalitarian movements. While she primarily focuses on racism and bureaucratic structures associated with the conclusion of imperialism, her theory also extends to the military domain. The colonial sphere witnessed the emergence of conflicts based on the total war paradigm, as outlined by Carl Schmitt, a paradigm that would manifest itself in the Second World War and contribute to the demise of the *Jus Publicum Europeanum*.

In contrast to the conflicts occurring within Europe during the same period, colonial wars did not exhibit the parity between adversaries that characterized the traditional European spatial order. In colonial wars, the territory to be conquered often appeared as "free," meaning it lacked established state structures, resulting in an inherently unequal relationship between

<footnote n="101">¹⁰¹ Arendt, *The Origins of Totalitarianism*, 499.</footnote>

<footnote n="102">¹⁰² Arendt, *The Origins of Totalitarianism*, 441.</footnote>
belligerents. The victims of colonialism found themselves in a position like that of non-Christian peoples in the medieval spatial order or even criminals, situated outside the realm of the law. The primary objective of colonial wars was not victory over an adversary seen as an equal but rather their subjugation or even complete eradication in a war involving two parties considered unequal. In this regard, colonial wars bore resemblance to civil wars, as described by Schmitt. They were marked by technical disparities between the belligerents, the dominant role played by partisans, and a focus on counterinsurgency tactics. Wars fought in colonies, such as those in Algeria or Madagascar, shared characteristics with counterinsurgency wars seen in Europe, like those in Spain or Portugal during the Napoleonic wars or in Ireland during the Irish War of Independence.<fnref n="103" />

The utilization of semi-regular troops, exemplified by Du Pin's tactics against Juarez's partisans during the Mexican expedition in 1863, represented a form of guerrilla warfare. The primary aim was the pacification of a territory, which diverged significantly from the regular armies engaged in battles like the one at Sadowa in Europe during the same period. Similarly, the methods employed by the United States to subdue the Philippines at the outset of the twentieth century amounted to a colonial war that intertwined racial ideology and the belief in the "manifest destiny".<fnref n="104" />

In stark contrast to the model of industrial warfare witnessed in the First World War, a trend that had already begun in European conflicts with the increased lethality of firearms and improved logistical capabilities, colonial wars were marked by their technical and social archaism. Practices such as looting and raiding were commonplace in colonial armies, which lacked the sophisticated logistical structures found on the European continent. The concept of conquest in colonial wars differed significantly from the notion of a professional military operation; instead, it resembled an expedition like a hunting party, where the acquisition of trophies, even in the form of human captives, held fundamental importance.<fnref n="105" /> The occurrence of massacres in colonial wars stemmed from this archaic conception of warfare and conquest. It bore a resemblance to methods employed during historical events like the Black Prince's *Chevauchée* in 1356 or corsair warfare, rather than the modern techniques utilized on European soil during the late nineteenth century. While this "archaism" in warfare was not

<footnote n="103">¹⁰³ Richard Fogarty, “A Progressive Occupation? The Gallieni-Lyautey Method and Colonial Pacification in Tonkin and Madagascar, 1885–1900”, *The Journal of Modern History* 88/1 (2016): 205–207.</footnote>

<footnote n="104">¹⁰⁴ Paul Kramer, “Race–Making and Colonial Violence in the U.S. Empire: The Philippine-American War as Race War.” *Diplomatic History* 30/2 (2006): 169–210.</footnote>

<footnote n="105">¹⁰⁵ Isabelle Dion, *Nouvelle histoire des colonisations européennes* (Paris: Presses Universitaires de France, 2013), 28–37.</footnote>
exclusive to colonial wars, it was indicative of a breakdown or disintegration of the state's
influence on colonial territories.

Colonial wars did not conform to the model of state duels proposed by Carl von Clausewitz's theories; instead, they exhibited characteristics of total warfare. Their objectives extended beyond traditional state competition to encompass the submission or obliteration of the opposing party, as classified by Jacques Semelin in his work *Purify and Destroy*.<fnref n="106" /> This dimension of colonial warfare emerged dramatically on the European stage in the conflicts following the aftermath of the First World War. Examples include the Greco-Turkish War of 1922 and the Soviet-Polish War of 1921, before reaching its most extreme form with the outbreak of the Second World War. While instances of massacres associated with total warfare were not entirely absent from nineteenth-century Europe, as exemplified by the Chios massacre in 1821 or the Bloody Week in 1870, these events primarily occurred within the context of classical civil wars that were internal to a specific state. In stark contrast, the Second World War, as described by Schmitt, represents a “global civil war”.<fnref n="107" />

Moreover, the primary instigators of the conflict, notably Nazi Germany, extensively drew upon colonial experiences to legitimize their expansionist agendas. As Adam Tooze elucidates in his work *The Wages of Destruction*, the Third Reich's expansionist policies, particularly in Eastern Europe, bore significant similarities to colonialism in their emphasis on territorial conquest. Hitler's objective was to acquire new territories by displacing their indigenous populations, with the aim of establishing an expansive German empire capable of rivaling the United States in terms of landmass. Goebbels, for instance, championed the colonial aspect of this vision and articulated in his publication: “[T]he Führer considers the East as our India to come. This is the colonial territory that we must occupy”.<fnref n="108" />

Similarly, David Woodruff Smith highlights the agrarian roots of the *Lebensraum* theory and its significant impact on the development of nazi ideology. Initially, a continental empire with limited engagement in overseas expansion, Germany would later endeavor to establish its colonial empire after 1890. This shift was partly motivated by the need to manage significant emigration, which had surged at the close of the nineteenth century. During the period between 1881 and 1890, approximately 1.5 million Germans emigrated to the United States. Consequently, the theories of Lebensraum emerged within a colonialist ideological

<footnote n="106">¹⁰⁶ Jacques Semelin, *Purify and Destroy: The Political Uses of Massacre and Genocide* (London: C Hurst & Co Publishers Ltd, 2013), 328–345.</footnote>

<footnote n="107">¹⁰⁷ Schmitt, *The Nomos of the Earth*, 296.</footnote>

<footnote n="108">¹⁰⁸ Adam Tooze, *The Wages of Destruction: The Making and Breaking of the Nazi Economy* (London: Allen Lane, 2006), 180.</footnote>
backdrop, aimed at reorienting migration patterns to support an imperialistic agenda.<fnref n="109" /> In contrast to colonial expansion in Africa, these concepts played a role in reshaping the idea that Germany's expansionist focus should pivot towards Eastern Europe. This perspective would come to constitute a fundamental tenet of German imperialist policy between 1933 and 1945.

By establishing a connection between the ideological roots of Nazism and the colonial theories of the late nineteenth century, Smith thus emphasizes that Nazism, instead of signifying a significant departure in modern history, can be viewed as the culmination of German imperialism. Tied within the structure of National Socialist ideology, the imperialistic doctrines nurtured during the Wilhelmian era were put into practical use during the Eastern expansion endeavors:

> The culmination of the development of imperialism as a political ideology in Germany took place during the Nazi period. The Nazis managed to combine the major tendencies in German imperialism much more successfully than any previous political organization, mainly by fitting them into a larger ideological structure embodied in the party's program.<fnref n="110" />

The military strategy of Nazi Germany in Eastern Europe undeniably exhibited characteristics akin to a colonial endeavor, drawing justification from the historical precedent of the conquest of the Americas and the subsequent decimation of indigenous populations. From the perspective of Nazi Germany, Eastern Europe occupied a position similar to that of the New World in the eyes of sixteenth-century Europeans—a land devoid of established rights, making it legitimate to conquer, even if it required the elimination of its inhabitants, thus rendering the conventional rules of the laws of war inapplicable.<fnref n="111" /> As post-Second World War thinkers like Simone Weil, Aimé Césaire or Hannah Arendt suggested, “Hitlerism consists in the application by Germany to the European continent, and more generally to the countries of the white race, of the methods of conquest and colonial domination”.<fnref n="112" /> By transplanting imperialism directly onto the European sphere, Nazi Germany ruptured the principles of the *Jus Publicum Europeanum*, paving the way for the resurgence of total warfare in Europe.

<footnote n="109">¹⁰⁹ David Woodruff Smith, *The Ideological Origins of Nazi Imperialism* (Oxford: Oxford University Press, 1986), 83.</footnote>

<footnote n="110">¹¹⁰ Smith, *The Ideological Origins of Nazi Imperialism*, 231.</footnote>

<footnote n="111">¹¹¹ Tooze, *The Wages of Destruction*, 312.</footnote>

<footnote n="112">¹¹² Simone Weil, “A propos de la question coloniale”, in *Œuvres* (Paris: Quarto Gallimard, 1999), 430.</footnote>
This analysis prompts a reevaluation of Carl Schmitt's interpretation regarding the resurgence of just war in the first half of the twentieth century. Schmitt attributes primary responsibility to the United States for the dissolution of the European spatial order and the resurgence of the just war paradigm, leading to the return of total warfare. Contrarily, by emphasizing that total warfare predates the emergence of the American superpower and adheres to the same logic as colonial warfare applied within the European sphere, we cast doubt on the United States' role in the outbreak of the Second World War.

The eruption of total wars on the European stage seems to have been the consequence of the disintegration of the European spatial order, which had reached the limits of its regulatory framework due to the depletion of lands perceived as devoid of established rights. Consequently, the resurgence of the just war emerges as a novel geopolitical paradigm aimed at averting the reoccurrence of total warfare. This shift was facilitated by the emergence of American and Soviet superpowers after the Second World War and was reinforced by the collapse of the USSR at the close of the twentieth century. This scenario places the United States in a role analogous to that of the Pope in Thomist theory—an ultimate arbiter capable of determining the appropriateness or impropriety of a conflict.

Conclusion

Schmitt's intellectual framework offers us insights into the intricate relationship between the law of war and the development of the sovereign state model. By grounding politics in the dynamics of territorial annexation and tracing the origins of law from this perspective, his analysis allows us to diverge from legal positivism and contemplate state-building in a long-term historical context, interwoven with Europe's history. The paradigm of the European nation-state emerges as inherently connected to a dual dynamic, shaped by two pivotal events marking the transition from the Middle Ages to the modern era: the Reformation and the discovery of America.

Within the European realm, the conclusion of the medieval just war model and the institutionalization of warfare granted the emerging sovereign state exclusive authority over the right to engage in armed conflict. Simultaneously, the establishment of a normative framework governing interstate disputes contributed to the development of the concept of a European equilibrium, centered on restraining war and territorial conquests within the continent's core. This gave rise to a distinctive spatial order specific to Europe, preventing the consolidation of a continental empire with dominant sway over the entire continent while
preserving the state of perennial conflict among European nations. Nonetheless, Schmitt highlights that this European spatial structure found its underpinning in the existence of vast, ostensibly unclaimed expanses of territory, perpetually susceptible to conquest without jeopardizing the European equilibrium. This duality encompassed a twofold process: the restriction of conflicts within the European domain and the externalization of violence into the colonial sphere. Thus, the law of war and imperialism collectively constitute the twin foundations of the modern European state.

Nonetheless, while Schmitt offers valuable insights into the transformations shaping the construction of European states during the modern era, his interpretation regarding the factors leading to the decline of the modern state model requires further examination. Schmitt's perspective, which aligns with a proponent of European imperialism, accentuates the significance of the United States emerging as a global superpower, potentially overshadowing internal causes, and inherent tensions within the framework of colonial expansion.

Considering post-war thinker, Schmitt's analysis tends to almost exonerate Germany of its role in triggering the events that culminated in two world wars and the subsequent disintegration of Europe. However, by considering other research emphasizing the influence of colonial issues on the outbreak of the First World War and recognizing the colonial nature of the Nazi conquest enterprise, it becomes apparent that Schmitt's line of thought can lead to an entirely different conclusion, affording greater importance to colonial conquest. From this vantage point, the dissolution of the European spatial order appears to be a consequence of the tensions inherent in European expansionism itself and the paradoxes it generates in a finite world. In this context, so-called "free space" can no longer serve as an outlet for the violence associated with territorial conquest. The emergence of the United States as a global superpower thus ceases to be the cause but becomes a consequence of the implosion of the European spatial order. This development contributed to the establishment of a new model for regulating warfare – one anchored in the presence of a dominant power and the resurgence of the just war paradigm.
**Bibliography**

Allina, Éric, *Slavery by Any Other Name: African Life under Company Rule in Colonial Mozambique* (Charlottesville: University of Virginia Press, 2012).

Arendt, Hannah, *The Origins of Totalitarianism* (New York: Meridian Books, 1962).

Badem, Candan, The *Ottoman Crimean War (1853–1856)* (Boston: Brill, 2010).

Balakrishnan, Gopal, *The Enemy: An Intellectual Portrait of Carl Schmitt* (London: Verso, 2000).

Ball, Hugo and Matthew Vollgraff, “Carl Schmitt’s Political Theology”, *October* 146 (2013), 65–92.

Barton, Simon, “From Tyrants to Soldiers of Christ: The Nobility of Twelfth-century Léon-Castile and the Struggle against Islam”, *Nottingham Medieval Studies* 44 (2000), 28–48.

Benhabib, Seyla, “Carl Schmitt’s Critique of Kant: Sovereignty and International Law”, *Political Theory* 40/6 (2012), 688–713.

Berghahn, Volker, “German Colonialism and Imperialism from Bismarck to Hitler”, *German Studies Review* 40/1 (2017), 147–162.

Braun, Christian, *Limited Force and the Fight for the Just War Tradition* (Washington, DC: Georgetown University Press, 2023).

Bryan, Ian and Peter Langford, “Hans Kelsen’s Theory of Legal Monism: A Critical Engagement with the Emerging Legal Order of the 1920s”, *Journal of the History of International Law*, 14 (2012): 51–86.

Buzar, Stipe, “The Principle of Double Effect and Just War Theory”, *Philosophia*, 48/4 (2020): 1299–1312.

Cain, Peter and Anthony Gerald Hopkins, *British Imperialism: Innovation and Expansion 1688–1914* (London, New York: Longman, 1993).

Clark, Christopher, *The Sleepwalkers: How Europe Went to War in 1914* (London: Harpers Collins, 2013).

Clark, Timothy James, “Painting in the Year Two”, *Representations* 47 (1994): 13–63.

Clausewitz, Carl von, *On War* (London: Everyman’s Library, 1993).

Demieville, Paul and Martin Faigel, “The First Philosophic Contacts Between Europe and China”, *Diogenes* 15/58 (1967): 75–103.

Dion, Isabelle, *Nouvelle histoire des colonisations européennes* (Paris: Presses Universitaires de France, 2013).

Francesca Ferraro, “The Kelsen/Schmitt Debate: Heller’s Solution and the Future of Europe”, in *The Space of Crisis: Images and Ideas of Europe in the Age of Crisis, 1914–1945*, eds. Vittorio Dini and Matthew D’Auria (Brussels: Peter Lang, 2013), 181–195.

Fitzpatrick, William, “The Doctrine of Double Effect: Intention and Permissibility”, *Philosophy Compass* 7/3 (2012): 183–196.

Fogarty, Richard, “A Progressive Occupation? The Gallieni-Lyautey Method and Colonial Pacification in Tonkin and Madagascar, 1885–1900”, *The Journal of Modern History* 88/1 (2016): 205–207.

Fornasiero, Jean and John West-Sooby, “The Acquisitive Eye? French Observations in the Pacific from Bougainville to Baudin”, *Discovery and Empire*, edited by John West-Sooby, (Adelaide: University of Adelaide Press, 2013), 69–98.

Goddard, Stacie, “When Right Makes Might: How Prussia Overturned the European Balance of Power”, *International Security* 33/3 (2009): 110–142.

Gross, Leo, “The Peace of Westphalia, 1648–1948”, *American Journal of International Law*, 42/1 (1948): 28.

Heraclides, Alexis and Ada Dialla, “The origins of the idea of humanitarian intervention: just war and against tyranny”, *Humanitarian Intervention in the Long Nineteenth Century:*
*Setting the Precedent*, edited by Alexis Heraclides and Ada Dialla, (Manchester: Manchester University Press, 2015), 14-30.

Hooker, William, *Carl Schmitt's International Thought: Order and Orientation* (Cambridge: Cambridge University Press, 2009).

Jonas, Raymond, *The Battle of Adwa: African Victory in the Age of Empire* (Cambridge: Belknap Press of Harvard University Press, 2011).

Kalyvas, Andreas, “Carl Schmitt’s Postcolonial Imagination.” *Constellations* 25/1 (2018): 35–53.

Kant, Immanuel, *Critique of Practical Reason: And other Writing in Moral Philosophy* (New York: Garland, 1976).

Koch, Alexander, Chris Brierley, Mark Maslin and Simon Lewis, “Earth System Impacts of the European Arrival and Great Dying in the Americas after 1492”, *Quaternary Science Reviews* 207 (2019): 13–36.

Kramer, Paul, “Race-Making and Colonial Violence in the U.S. Empire: The Philippine-American War as Race War”, *Diplomatic History* 30/2 (2006), 169–210.

Le Cour, Grandmaison Olivier, *De l'indigénat: Anatomie d'un monstre juridique* (Paris: La Découverte, 2015).

Lenin, Vladimir, *Imperialism, the Highest Stage of Capitalism: A Popular Outline* (New York: International Publishers, 1939).

Leoni, Simona Boscani, “Between the Americas and Europe: Mapping Territories through Questionnaires, 16th–18th Centuries”, *Connecting Territories: Exploring People and Nature, 1700–1850*, edited by Simona Boscani Leoni, Sarah Baumgartner, and Meike Knittel, (Boston: Brill, 2022), 23–53.

Lghafal, Suaad, “The German Scramble for Africa (1882–1909)”, *A Bridgehead to Africa: German Interest in the Ottoman Province of Tripoli (Libya) 1884–1918*, edited by Leibniz-Zentrum Moderner Orient, (Berlin, Boston: De Gruyter, 2021), 73–112.

Linklater, Andrew and Stephen Mennell, “Norbert Elias, the Civilizing Process: Sociogenetic and Psychogenetic Investigations—an Overview and Assessment”, *History and Theory: Studies in the Philosophy of History* 49/3 (2010): 384–411.

Lisska, Anthony, “Natural Law and the Roman Catholic Tradition: The Importance of Philosophical Realism”, *American Journal of Economics and Sociology* 71/4 (2012): 745–786.

Maddox, Graham, “The Secular Reformation and the Influence of Machiavelli”, *The Journal of Religion* 82/4 (2002): 539–562.

Magalhães, Pedro, *The Legitimacy of Modern Democracy: A Study on the Political Thought of Max Weber, Carl Schmitt and Hans Kelsen* (Milton: Routledge Innovations in Political Theory, 2021).

Mehring, Reinhard, *Carl Schmitt's European Jurisprudence* (Baden-Baden: Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, 2022).

Melvin, Endy, “Francisco De Vitoria and Francisco Suárez on Religious Authority and Cause for Justified War: The Centrality of Religious War in the Christian Just War Tradition”, *The Journal of Religious Ethics* 46/2 (2018): 289–331.

Mitchener, Kris and Marc Weidenmier, “Empire, Public Goods, and the Roosevelt Corollary”, *The Journal of Economic History* 65/3 (2005): 658–692.

Moore, Robert and Jinty Nelson, “The War against Heresy in Medieval Europe”, in *The Creight on Century, 1907–2007*, edited by David Bates, Jennifer Wallis and Jane Winters (London: University of London Press, 2009), 287–317.

Navarrete, Linares Federico, “Understanding the Conquest of Mexico from the 21st Century”, *Iberoamericana* 19/71 (2019): 7–12.
Ng'ong'ola, Clement, “The State, Settlers, and Indigenes in the Evolution of Land Law and Policy in Colonial Malawi”, *The International Journal of African Historical Studies* 23/1 (1990): 27–58.

Nichols, Robert, *Theft is Property!: Dispossession and Critical Theory* (New York: Duke University Press, 2020).

Nuzzo, Luigi. “Rethinking Eurocentrism.: European Legal Legacy and Western Colonialism”
Diritto: *Storia e Comparazione: Nuovi Propositi per Un Binomio Antico*, edited by
Massimo Brutti and Alessandro Somma, (Frankfurt am Main: Max Planck Institute for
Legal History and Legal Theory, 2018)

Oxman, Bernard, “The Territorial Temptation: A Siren Song at Sea,”, *The American Journal of International Law* 100/4 (2006): 830–851.

Perreau-Saussine, Émile, “Carl Schmitt contre la guerre juste”, *Commentaire* 96/4 (2001): 972–974.

Piketty, Thomas, *Capital and Ideology* (Cambridge, MA.: Harvard University Press, 2020).

Probasco, Nathan, “Virgin America for Barren England: English Colonial History and Literature, 1575–1635”, *Literature Compass* 9/6 (2012): 406–419.

Roy, Tirthankar, “Indigo and Law in Colonial India”, *The Economic History Review* 64 (2011): 60–75.

Rubbers, Benjamin, “The Story of a Tragedy: How People in Haut-Katanga Interpret the Post-colonial History of Congo”, *The Journal of Modern African Studies* 47/2 (2009): 267–289.

Salomon, Albert, “Hugo Grotius and the Social Sciences”, *Political Science Quarterly* 62/1 (1947): 62–81.

Schmitt, Carl, *The Nomos of the Earth in the International Law of the Jus Publicum*
*Europaeum* (New York: Telos Press, 2003).

Schneider, Bethany, “Boudinot’s Change: Boudinot, Emerson, and Ross on Cherokee Removal”, *ELH* 75/1 (2008): 151–177.

Semelin, Jacques, *Purify and Destroy: The Political Uses of Massacre and Genocide*
(London: C Hurst & Co Publishers, 2013).

Smith, David, *The Ideological Origins of Nazi Imperialism* (Oxford: Oxford University Press, 1986).

Stevenson, John and Bernard Oxman, “The Future of the United Nations Convention on the Law of the Sea”, *The American Journal of International Law* 88/3 (1994): 488–499.

Taagepera, Rein, “Size and Duration of Empires: Growth–Decline Curves, 600 B.C. to 600 A.D.” *Social Science History* 3/4 (1979): 115–138.

Taylor, Christopher, “Global Circulation as Christian Enclosure: Legend, Empire, and the Nomadic Prester John”, *Literature Compass* 11/7 (2014): 445–459.

Téreygeol, Florian and Cruz Pablo, “The Potosi Silver Mine: Technique at the Centre of a Power Struggle between the Incas and the Spaniards (16th–17th Centuries)”, *Patrimoines du Sud* 13 (2021): 1–32.

Tomich, Dale, *Slavery in the Circuit of Sugar: Martinique and the World–Economy, 1830–1848* (State University of New York Press, 2016).

Tooze, Adam, *The Wages of Destruction: The Making and Breaking of the Nazi Economy*
(London: Allen Lane, 2006).

Tricoire, Damien, “The French Revolution as a Period of Territorialization of the Colonial Empire? A Southern Indian Ocean Perspective”, *The French Revolution as a Moment of Respatialization*, edited by Megan Maruschke and Matthias Middell, (Berlin: De Gruyter Oldenbourg, 2019), 47–64.

Tzouvala, Ntina, “The Standard of Civilisation in the Nineteenth Century: Between the ‘Logic of Improvement’ and the ‘Logic of Biology’”, *Capitalism as Civilisation: A History of*
*International Law*, edited by Ntina Tzouvala, (Cambridge Studies in International and Comparative Law, 2020), 44–87.

Wang, Dong, “Between Tribute and Unequal Treaties: How China Saw the Sea World in the Early Nineteenth Century”, *History* 103 (2018): 262–285.

Weil, Simone, *Œuvres* (Paris: Quarto Gallimard, 1999).

Weis, Monique, “Between Holy War and Just War: Religious Arguments and the Legitimization of War in the Second Half of the Sixteenth and Early Seventeenth Centuries”, *Theologies of War*, edited by Jean-Philippe Schreiber, (Brussels: Éditions De L'Université De Bruxelles, 2006), 19–28.